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I
WEEKS
DAMNUM ABSQUE INJUEIA.
THE
DOOTEINE
OF
DAMNUM ABSQUE . INJURIA
CONSIDERED IN ITS RELATION TO THE
LAW OF TOETS.
BY
EDWAED P. WEEXS,
COUNSELLOR AT LAW, f
AUTHOR OF A TBEATI8E ON " ATTORNEYS AND COUNSELLORS AT LAW*" ; ANB
OF WORKS ON "TBB MINING LEGISLATION OF CONGRESS,
"mines, MINERALS, ETC."
San Francisco:
SUMNER WHITNEY & CO.
1879.
umnf or TK
^"f l^HC^
Copyright 1879,
By SUMNER WHITNEY & CO.
BACON & GOMPANT, PRUTCERB,
SAK FRANCISOO, CAL.
PREFACE
The object of this book is to take a general survey of the
doctrine known to the law as that of damnum absque injuria,
\t is proper to have it distinctly understood that it is not an
attempt at a treatise or a commentary on the law of torts.
The details of the distinction between a case of damnum
absque injuria and a case of tort will be found in the first
and introductory chapter, and the law of torts has been
treated of in various works now before the public. But I
have considered the subject in its relation to the law of torts,
and for reasons to be presently given, in that relation only.
I have therefore found it convenient to use many of the head-
ings or subdivisions of that branch of the law under which to
group the result of my labors upon the matter in hand. But
a tort being a wrong independent of contract, a ^Megal
wrong" — that is to say, a wrong in contemplation of law,
and therefore susceptible of a remedy — is precisely what a
case of damnum absque injuria is not, the latter being neither
a " legal wrong" nor susceptible of any remedy. So that my
object is to deal with, and to collect sufficiently to illustrate
the subject, those cases of loss and damage for which the
law provides no remedy ; cases where the theory of the law is
that no ^' wrong " has been committed as the law understands
the term — cases of loss, damage, or injury, "without wrong,"
absque injuria. As a correlative subject, some of those cases
will be considered where there may be a technical wrong
committed, but through some defect in the plaintifiP's right,
! .
VIU PREFACE.
title, or interest, or through the absence of these things, the
law presumes that he has no right which can be damaged at
all. These are properly cases of injuriu sine damnOy wrong
without actual damage, as contradistinguished from those
where the plaintifiTs right to the thing injured is complete;
yet the injury is irremediable at law, because, however great
the loss may be, the law declares that no wrong has been
committed. In neither case is there any remedy.
It is hoped that such an inquiry as this may prevent much
useless litigation, expensive to the client and perhaps vexatious
and unremunerative to the attorney, since such cases more than
any others are taken by the attorney upon contingent compen-
sation, where this is allowed. While a party may consider
himself aggrieved at not being provided with a remedy by
the laws of his country, it may be of considerable advantage to
him to know the fact before entering into litigation, where in
the ordinary course of events defeat is inevitable, assuming that
the case is properly presented on the adverse side, and that the
court is informed of the law.
It is proposed to treat the subject in its relation to the law of
torts. The author considers this its legitimate sphere. In a
broad sense, when a promissory note becomes barred by the
Statute of Limitations, or when a creditor is compelled by a
bankrupt or insolvent law to take a small percentage instead of
the whole claim, or when a verbal agreement falls within the
purview of the Statute of Frauds, a person suffers a loss and it
is a loss without a remedy, but it is not what lawyers under-
stand by the term damnum absque injuria. I have, therefore,
rejected discussions of the law of contracts and mere breach
of contract, and have considered the subject solely in its re-
lation to the law of torts, to which grand division of the law
I consider that it properly belongs.
It has been sometimes said that a tort may be dependent upon
or independent of contract. I prefer the definition already
PREFACE. IX
given, that a tort is a wrong independent of contract. But in
reference to the other proposition it is said that if a contract
imposes a legal duty the neglect of that duty is a tort founded
on contract, so that an action ex contractu for tlie breach of the
contract, or an action ex delicto for the breach of the duty, may
be brought at the option of the plaintiff. He may waive the
tort and sue upon the contract. Where there is a violation of a
legal right existing independent of any contract, such as an in-
vasion of a right of property, or the right of personal security,
or an injury to character, it is not founded on contract, and an
action ex delicto alone is proper. Whether a breach of contract,
express or implied, can ever properly be called a tort, is a prop-
osition I shall not stop to discuss, inasmuch as either an action
ex delicto or an action ex contractu will usually lie. The plaint-
iff, where there is a breach of contract, can generally have at
least nominal damages. As we are treating of cases where no
damages can be recovered, a discussion of ^^ torts dependent upon
contracts " (if there be such things) is manifestly beyond the
scope of this book.
The general plan of the work is to consider the subject
of damnum absque injuria as follows : It is true, as a general
proposition, that a person has a right to be secure in his life, his
person, his liberty, health, reputation, and property, real and
personal ; and further, that for a violation of this security, for
an injury to any of these things, he or his representatives can
recover some sort of damages. We shall consider in their or-
der those cases of injury to these things where no damages
can be recovered — where the law imputes no wrong, and there-
fore gives no redress. The subject of injuries to real and per-
sonal property includes chapters on injuries to the holders
and owners of stocks and shares in incorporated companies,
coming under the general head of conversion of personal prop-
erty, and the subject of injuries to real property includes a
chapter on injuries from mining operations, and one on inter-
X PREFACE.
ference with subterranean and surface streams and percolat-
ing waters. This is followed by a consideration of subjects,
which it has been found convenient to consider separately,
viz : Injuries arising from the nonfeasance, misfeasance, and
malfeasance of public officers, the subject of injuries arising
from negligence, and certain cases of misrepresentation and
deceit.
The subject may at first blush appear to be one of exceptions
to general rules. I have endeavored, by statement of principle,
and such illustration as I thought would be acceptable, to sys-
tematize the law upon the matter, and from its scattered con-
dition it has not been a very easy task. I hope to have taken
at least one step towards demonstrating that it is not a mere
abnormal growth, nor a bundle of exceptions, and that it may
perhaps be entitled to rank as a distinct branch of the law,
although a minor branch, presenting no greater proportion of
isolated features or discordant elements than many others.
However this may be, the result of investigating the law that
has growd around a Latin phrase is now before the reader.
San Francisco, May, 1879.
TABLE OF CONTENTS.
CHAPTER I.
INTBODUCTOBY— DBFINITION&-GENERAL ILLUSTBATIONS.
§ 1. Preliminary.
§ 2. Deflnition of a tort.
§ 3. Classifications of torts.
§ 4. Definition of the term "damnum iibsque ir\furid"
§ 6. "iTyiiria 9ine damno"
§ 6. The right to damages.
§ 7. The remedy for wrongs.
§ S. General illustrations of the doctrine of damnum absque ir^'t/ria— damages
from lawful acts.
§ 9. Use of one's own property.
§ 10. Contributory negligence.
§ 11. Trifling injuries.
§ 12. Interference with trade.
§ 13. Injuries committed through necessity.
§ 14. Bnles of public policy — eminent domain.
§ 15. Assumption of family names.
§ 16. Injuries arising from felonies.
§ 17. Injuries by grantees of franchises.
§ 18. Consent to or acquiescence in injuries.
§ 19. Non-exercise of power by municipal corporations.
§ 20. Publication of uncalled-for letters.
§ 21. Infringement of patents.
§ 22. Escape of dangerous elements or substances.
CHAPTER n.
PERSONAL INJURIES— INJURIES TO RELATIVE RIGHTS.
$ 23. General plan.
$ 24. Personal injuries.
§ 25. Injuries by infants and non-compotes.
§ 26. Injuries resulting in death.
$ 27. Assault.
§ 28. Assaults in self-defense, etc.
Xll TABLE OF CONTENTS.
§ 29. Defense of relatives, friends, etc.
§ 90. Moderate correction by parents, etc.
§ 31. Injuries to licensieea.
§ 32. Injuries to workmen.
§ 33. Injuries to trespassers.
§ 34. Injuries inflicted by masters of sliips upon their crew.
§ 35. Injuries from animals.
§ 36. Seduction.
§ 37. Criminal conversation.
§ 38. Connivance of the plaiutifT.
§ 39. Infidelity of the husband— Neglect of wife.
CHAPTER III.
INJURIES TO THE LIBERTY OF THE PERSON.
§ 40. False imprisonment.
§ 41. What does not constitute imprisonment.
§ 42. Lawful arrests.
§ 43. Justifiable detentions.
§ 44. Imprisonment by commanders of vessels.
CHAPTER IV.
INJURIES TO HEALTH— NUISANCES.
§ 45. Personal discomfoit.
§ 46. Mental distress.
§ 47. Obstruction of lights.
§ 48. Nuisances authorized by Act of the Legislature.
§ 49. Exercise of statutory powera.
§ 50. Trustees and Commissioners of Public Works.
CHAPTER V.
INJURIES TO REPUTATION — SLANDER AND LIBEL — MALICIOUS
PROSECUTION.
§ 51. Defamation.
§ 52. Slander.
§ 53. W^ords held not actionable. •
§ 64. Actionable words qualified by other words.
§ 55. Charge of false swearing. *
§ 56. Slander and libel— Publication.
§ 57. Insufficient publication.
TABLE, OP CONTENTS. •xill
$ 56. Words affecting trade, business, or occupation.
$ 60. The truth of the charge as a justification.
§ GO. Privileged communications, utterances, and publications.
$ 61. Extent of the privilege.
§ 62. Reports of trials.
§ 63. Privileged petitions.
§ 6i. Communications In reference to proposed marriages.
$ 65. Privilege of counsel in argument.
§ 66. Under control of the court.
§ 67. Responsibility of counsel ih argument.
§ 68. Publication of argument.
§ 69. Malicious prosecution.
§ 70. Malicious prosecution of civil actions.
§ 71. Defendant's proof.
CHAPTER VI.
INJURIES TO PERSONAL PROPERTY.
§ 72. Injuries to property.
§ 73. Injuries to personal property arising from necessity.
§ 74. Conversion of goods, etc.
§ 79. Limited interference with chattels.
§ 76. Chattels found.
§ 77. Chattels received as security.
$ 78. Injuries to animals.
§ 79. Hitching horses.
CHAPTER Vn.
INJURIES TO OWNERS AND HOLDERS OP STOCK AND SHARES
IN INCORPORATED COMPANIES-CONVERSION, ETC.
I
$ 80. Injuries suffered by purchasers of stock.
$ 81. Technical breaches of trust.
§ 82. Injuries suffered by equitable owners of stock— conversion by pledgee.
§ 83. Sale of mining stock — fraudulent representation.
§ 84. Stock stolen.
CHAPTER Vm.
INJURIES TO REAL PROPERTY.
$ 85. Trespasses on real property.
§ 86. Landlord's right to enter his premises.
$87. Justifiable entries.
§ 88. Self-liberation.
xiv' TABLE OF CONTENTS.
CHAPTER IX.
INJURIES FBOM MINING OPEBATION&
•
§ 90. Bight of surface sappoTt--Cominon-law presumptions.
$ 91. Express grant of right to surface support.
§ 92. Support from adjacent soil.
§ 93. Lateral support to ditch property.
§ 94. Flooding.
§ 95. Upper and lower level.
§ 96. Mining operations regarded as nuisances.
§ 97. Fraudulent working.
} 96. Prior possession of lands adjoining ndnes.
§ 99. Right of oldest locator.
CHAPTER X.
INJURIES TO WATER RIGHTS — SUBTERRANEAN AND SURFACE
WATERS-ARTIFICIAL WATER-COURSES.
§ 100. Diversion of subterranean streams, hidden springs, and percolating
waters — ^Injuries from mining operations to adjoining lands.
§ 101. Subterranean waters — Percolations diverted by well-digging.
§ 102. Injuries to wells, springs, etc., by mining operations in adjoining soil.
§ 103. Rights of owners of land in subterranean streams and percolations—
Water belonging to the soil.
§ 101. Reasonable use of surface streams.
§ 105. Pollution by sewage, etc.
§ 106. Injuries to artificial water-courses.
§ 107. Artificial water-courses— Two classes — Distinctions.
§ 106. Increasing the flow.
CHAPTER XI.
INJURIES FROM ACTS OF PUBLIC OFFICERS.
§ 109. Judicial officers, liability of.
§ 110. Responsibility of judicial officers for striking attorney's name from the
rolls.
§ 111. Ministerial officers.
§ 112. Acts of sheriffs.
§ 113. Public officers.
§ 114. Naval and military officers.
TABLE OP CONTENTS. XV
CHAPTER Xn.
INJURIES FROM NEGLIGENCE.
§ 115. Injuries from negligence.
§ 116. Remote and proximate damages.
§ 117. Remote consequences.
§ 118. Remote consequences — Injuries from fire.
§ 119. Injuries caused by railway locomotives.
§ 120. Contributory negligence.
§ 121. Plaintiffs duty to prevent injury.
§ 122. Contributory negligence on part of servants.
§ 123. Contributory negligence — Injuries to children.
§ 124. N^ligence of master— Injuries to servants.
§ 126. Injuries to servant — Exemption of master.
$ 126. Injuries to servants from their fellow-servants.
§ 127. Negligence of servants.
$ 128. Negligent management of chattels-— Inevitable accident.
§ 129. Successive negligence of two or more.
§ 130. Conteinpolraneous negligence.
$ 131. Intervening negligence.
§ 132. Mutual negligence.
S 133. Negligence of medical men.
CHAPTER Xni.
DECEIT, FRAUD, AND MISREPRESENTATION.
§ 134. Deceit, fraud, and misrepresentation.
§ 135. What must be shown, or the action fail.
§ 136. The representation.
§ 137. Knowledge of falsity.
§ 138. Ignorance and belief of the plaintiff.
§ 139. Equal means of knowledge.
§ 140. The intention that the representation should be acted upon.
§ 141. Acting upon the representation. ^
§ 142. Waiver of fraud.
§ 143. Expressions of opinion and belief.
§ 144. Negligence of innocent parties.
^5:72^x^7^ ^tx!^.e:2.d>^^
THE DOCTRINE
OF
DAMNUM ABSQUE INJUEli.
CHAPTER L
INTBODTJCTORY— DEFEMinOKS— OENESAIj ILLXTSTBATIONS.
§ 1. Preliminary.
§ 2. Definition of a tort.
§ 3. Classifications of torts.
§ 4. Definition of the term " damnum absque ir\furid"
§ 5. "Ir^uria nne damno"
§ 6. The right to damages.
§ 7. The remedy for wrongs.
§ H. General illustrations of the doctrine of damnum absque {Y^fttrfa— damages
from lawful acts.
$ 0. Use of one's own property.
§ 10. Contributory n^ligence.
§ 11. Trifling injuries.
§ 12. Interference with trade.
$ 13. Injuries committed through necessity.
§ 14. Bnles of public policy — eminent domain.
§ 15. Assumption of family names.
S 16. Injuries arising from felonies.
§ 17. Injuries by grantees of franchises.
§ 18. Consent to or acquiescence in injuries.
§ 19. Kon-exercise of power by municipal corporations.
§ 20. Publication of uncalled-for letters.
§ 21. Infringement of patents.
$ 22. . Escape of dangerous elements or substances.
§ 3. ProUminary. — It is proposed in this chapter to define
the subject under consideration, and to follow with some general
illustrations which, it is hoped, will further elucidate the matter,
and explain the general nature of the doctrine known as damnum
cibsque injuria. In the succeeding chapters the general divie-
ions of the law of torts will be examined in their order, and
D. A. I.— 1
2 INTBODUCTORT. § 2
those cases and conditions referred to which constitute an in-
jury one without remedy, and, theoretically at least, to use the
language of the books, " without legal wrong." In this chapter
the illustrations will be purposely diverse and miscellaneous, the
better to convey some general idea of the meaning, extent, and
scope of the doctrine. In the succeeding chapters it will be
attempted to consider in their order, and with an effort at classi-
fication, those injuries to the persons, the liberty, the health, the
security, the reputation, and the personal and real property of
members of civilized society, and those injuries to the relative
rights which fall under the heads of master and servant, parent
and child, husband and wife, and guardian and ward, and which
are yet without any legal remedy, however great the loss, the
injury, or the suffering. A consideration of those injuries for
which the law affords some remedy would form the groundwojrk
of a treatise on torts, and, for reasons to be stated, would be for-
eign to the present purpose. We will now attempt to point out
the distinction between a tort and such an injury as is damnuvn
absque injuria^ and therefore falls within the scope of this book.^
§ 2. Dafinitioii of a tort. — A tort is a civil wrong for
Vhich compensation in damages is recoverable, in contradistino
tion to a crime or misdemeanor, which is punished by the crim*
inal law in the interest of society at large. Every invasion of
a legal right, such as the right of property, or the rights inci«
dent to the possession of property or the right of personal
security, constitutes a tort ; and so may an injury to the person,
character, or reputation of another. To constitute a tort, two
things must concur — actual or legal damage to the plaintiff, and
a wrongful act committed by the defendant.^ £!x damno sine
injuria non oritur actioy is an ancient maxim of the common
^ It was the boast of the common law that tnere was no wrong without a rem*
edy, and no right without a shield. It will be the province of tliis book to en*
deavor to show and to enumerate the injuries for which the law affords no rem-
edy whatever. Still the boast may not be an idle one if we reflect that such
injuries are not (as will be seen) wrongs at all in contemplation of law. TUey
aro injuries without wrong, and therefore the maxim ubi jus^ ibl remedium, may
stiU maintain its place, because cases of damnum absque injuria are cases where
the law declares that there is no right of action at all, because no wrong has
been inflicted as the law understands the term. (Johnstone v. Sutton, I T. B
312.)
3 Rex V. Commissioners, 8 Bam. & C. 362.
§ 2 DEFINITIONS. 8
law. ^^ There must,^' says Hobart, ^^bc a damage, either al-
ready fallen upon the party or inevitable — there must also be a
thing done amiss." ^ One person cannot, either, maintain an ac-
tion against another for a mere illegal or wrongful act, unless he
has thereby sustained an injury.^ It is injuria sine damno—
wrong without damage to the plaintiff. By injuria is meant a
tortious act, whether willful and malicious or accidental.^ A
man, on the other hand, may sustain grievous damage at the
hands of another, and yet, if it be the result of inevitable acci-
dent, or a lawful act done in a lawful manner without any care-
lessness or negligence, there is no injury in^ontemplation of law,
and no tort giving rise to an action for damages.^ An act of
force, for example, done in necessary self-defense, causing in-
jury to an innocent bystander, is damnum sine or absque injuries
for no man does wrong or contracts guilt in defending him*
self against an aggressor.^ If a lighted firework is thrown into a
coach full of company, and is thrown out again in necessary self^
defense, and falls against and bums a bystander, or explodes in
his face and blinds him, the person throwing out the firework
cannot be held liable for the damage.^ If a land-owner whose
lands are exposed to inroads of the sea, or to inundations from
adjacent creeks or rivers, erects sea-walls or dams, for the pro-
tection of his land, and by so doing causes the tide, the current,
or the waves to flow against the land of his neighbor, and wash
1 Waterer o. Freeman, Hob. 266.
> Nichols V. Valentine, 36 Me. 922.
But it has been said that where a person's legal right is infringed, although
He suffers no substantial damage, yet he has his right of action. Ir^vria sine
damno will entitle a person to maintain an action, which means that when a
person has suffered what in the eyes of the law is looked upon as a legal injury,
he must have a corresponding right of action, even though he has suffered no
barm. 8o, in the old case of Ashby r. White, lid. Raym. ()38, which was an
action against a returning officer, for maliciously refusing to receive the plaint-
iff's vote on an election of burgesses to serve in parliament, it was held that
the defendant having so maliciously refused to receive the vote, although the
members for whom he wished to vote were actually elected, and therefore ho
suffered no damage, yet he hud a good riglit of action, for he had a legal right
to vote, and that right was infringed. Such, however, is not generally received
as the modem doctrine. (Lambard v. Pike, 33 Me. 151. See, also, post^ § 5.)
< Winsmere v. Greenbank, Willes, 577.
4 Bizzell V. Booker, IG Ark. 308; Harvey o. Dnnlop, Hill & Denio, 193; Fahn
9. Reichart, 8 Wis. 255.
* Morris v. Flatt, 32 Conn. 75; 3 WUs. 412.
« Scott V. Shepherd, 2 W. Black. S82.
4 INTBODUCTORT. § 8
it away, or cover it with water, the land-owner 80 causing an
injury to his neighbor is not responsible in damages to the lat-
ter, as he has done no wrong, having acted in self-defense, and
having a right to protect his land and his crops from inunda-
tion.^ But if he runs out a wharf or embankment, for the
purpose of acquiring more land, or increasing its value, the case
is different.^ If a man sells a house commanding a fine sea
view, or a fine prospect, and then builds on his own adjoining
land so as to shut out the sea view, or the prospect^ a great
injury is done, but there is no redress.^ Obstructing the free
passage of light and air is, however, a different matter. At
common law, the simple sale of cattle affected with disease
seemed not to be unlawful, so that, if a person bought such
cattle, and mixed them with his herd or stock, and the disease
spread, he appeared to be without remedy, on the principle of
caveat emptor.^ But the consequences are or may be so serious
that the doctrine has not been universally commended.^ The
matter is frequently regulated by statute. Where instructions
for an action were given, and through mistake of the attorney
the wrong person was sued, and the latter failed to appear and
plead, and judgment went against him by default, and his
goods were seized on execution, this was considered damnum
absque injuria. If he defends, and incurs costs which he can^
not recover, he seems to be in no better position.^ These re-
marks and illustrations will show that a tort implies damage
coupled with a wrongful act ; damnum absque injuria is dam-
age without a wrongful *act, as the law understands the term.
§ 3. dassiflcation of torts. — The law of torts, in its civil
aspect, has been said to treat of the breach of duties which govern
the relations of individuals to each other as mere members of the
State, or as occupying some special situation towards each other
not produced by agreement inter sese^ or as occupying some
1 Bex V. Pagham, 8 Darn. & C. 360. But see, corUra, Gerrisli v. Clough, 48
N. H.9.
^ Addison on Torts, chap. 1; G Taunt. 44.
s Alfred's Case, 9 Co. 586; Knowles v. Richardson, 5 Mod. 55; Harwood v.
Tompkins, 4 Zab. 425.
4 Hill V. Balls, 2 Hurl. & K. 302. See Fisher v. Clark, 41 Barb. 329.
^ See Blakemore v. Company, 8 El. & B. 1051; Anderson v. Buckton, 1 Str. 192.
Davies v. Jenkins, 11 Mees. & W. 755.
i
§ 8 DEFINITIONS. 6
special sitaatioD of agreement inter sese^ affording occasion for
breaches of duty between them that need not be treated as
breaches of contract. The first is the most extensive division.
The law relating to the following subjects belongs to it : Deceit,
in part, slander and libel, malicious prosecution, conspiracy,
assault and battery in part, false imprisonment in part, enticement
and seduction, trespasses upon property in part, conversion, in-
fringements of patents and copyrights, violation of rights of sup-
port, violation of water rights, nuisance, damage by animals, es-
cape of dangerous elements or substances, and negligence in part.
Under the second division, where ^ duty has been broken which
prevails because the parties concerned occupied a special situa-
tion towards each other, not produced by agreement inter sese,
will fall the law relating to public officers, (including that part
of the law relating to assault and battery, false imprisonment,
and trespasses upon property, not embraced under the first head)
and the law relating to the duty of innkeepers to receive guests
and of common carriers to receive passengers or goods, accord-
ing to the nature of their business and the law of waste. Under
the third subdivision, where parties occupy a situation of agree-
ment among themselves, affording opportunity for breaches of
duty that need not be treated as breaches of contract, will fall
a part of the law relating to deceit, which is also embraced
under the first head, as deceit in sales, in which the wrong may
be treated as either a tort or a breach of warranty, and the law
relating to innkeeper and guest, common carriers, and other
biulees, several of these subjects being also embraced under the
title negligence. In cases of deceit, slander and libel, malicious
prosecution, and conspiracy, the essential feature is the peculiar
animus or intent which is or may become necessary to a right
of redress for the alleged bjeach of duty. In cases arising
under any of these heads, an issue based on the circumstances
of the alleged tort may in most cases be raised concerning the
animus. In cases arising under any of the following heads, the
existence or non-existence of the animus is immaterial so far as
the right to redress is concerned, the law conclusively presum-
ing that the act, if proved, was intended : Assault and battery,
false imprisonment, enticement and seduction, trespasses upon
property, conversion, infringements of patents and copyrights,
6 INTBODUCTOBY. § 4
violation of riglits to support, violation of water rights, nuisance,
damage by animals, and C8ca{>c of dangerous elements or sub-
stances, although in assault and battery the question of intent
does become material in some cases.^
To adopt another grouping of subjects, there may be injuries
to the person, resulting in death or in serious disability, as in
cases of assault and battery; injuries to both persons and
property resulting from negligence ; injuries to liberty, such as
false imprisonment ; injuries to personal property ; injuries to
real property, as trespass ; injuries through misfeasance, mal-
feasance, or non-feasance of jpublic officers. There may also be
cases of malicious prosecution, fraud, and deceit, and injuries to
reputation, such as libel and slander. Or, again, there may be
injuries to the absolute rights of persons, including injuries to
the body, as assault and battery, false imprisonment ; and inju-
ries to the health ; injuries to the reputation, as libel and slan-
der, malicious prosecution ; injuries to the relative rights, aa to
people in their public relations, including wrongs committed by
judicial and ministerial officers ; and in their private relations,
including those of master and servant, parent and child, hus*
band and wife, etc. ; and also cases of joint ownership, and
matters arising from injuries by incorporated companies. Al-
though, as wc have seen, a case of damnum absque injuria is
not a case of tort, wc arc treating of the subject in its relation
to the law of torts, and wc shall therefore use in the succeeding
chapters the various headings of the law of torts in the subdi-
visions of this book. The classification adopted will be indicated
in the next chapter. It will follow more nearly the last-men-
tioned classification than the first.
§ 4. Definition of the term " damnum absque injuria." —
Wc will now further attempt, by definition and illustration, to fix
the meaning of the term. The literal definition of the term dam-
num absque injuria is damage without injury. But this savors
somewhat of a contradiction of terms, since it is difficult to con-
ceive of a damage done without a corresponding injury to the
party damaged. If we enlarge our definition to some extent, but
still confine ourselves to the definitions of Latin lexicographers,
^ Blgelow's Elements of the Law of Torts, Introd.
§ 4 DEFINITIONS. 7
we find that the term may mean damage, loss, harm, injury, or
hurt without wrong or injustice ; and from these definitions we
may select the one usually given in the books — that of injury with-
out wrong.^ But still, before we arrive at a satisfactory under-
standing of the term as used by the profession and by writers,
resort must be had to some paraphrase, such as ^^ injury or dam-
age done to a person, and for which the law provides no remedy,"
or '* injury without wrong in contemplation of law," or " injury
or damage without legal wrong." ^
Damage is defined to be the loss caused by one person to
another, or to his property, either with the design of injuring
him, or with negligence and carelessness, or by inevitable acci-
dent. He who has caused the damage is bound to repair it,
and if he has done it maliciously, he may be compelled to pay
beyond the actual loss. When damage occurs by accident,
without bliime to any one, the loss is borne by the owner of the
thing injured ; as, if a horse run away with his rider, without
any fault of the latter, and injure the property of another per-
son, the injury is the loss of the owner of the thing. When
the damage happens by the act of God* or inevitable accident,
as by tempest, earthquake, or other natural cause, the loss must
be borne by the owner.*
Strictly speaking, injuria is a wrongful act or tort, that re*
lates to the defendant. Damnum is the loss sustained or harm
1 Anthon's lAt. Die. ad verb. ; Bouv. Die. ; Broom Max. 1.
> Dctmnum, at the civil law, was considered to be the diminntion of a man's
property, and was treated of in the digest according as it was factum^ (already
done) or ii^ectumt (apprehended or threatened). The former, more usually
termed simply damnum^ might arise from a mere accident or from the free will
of another. If it arose in the latter way, it might have arisen in the exercise of
a right enjoyed by the person causing it, and then no reparation had to be made
for causing it, non videtur vim facere qui Jure sua utitur, (D. xxxix, 2; D. L, 17,
155); or it might have been done wrongfully, and then the person injured was
entitled to comx>ensation.
At the civil law, injuria^ in its general sense, signified every action contrary
to law; in a special sense, it meant sometimes the same as contumcliay (outrage)
which is derived from contemnere^ sometimes the same as culpa^ (fault) and
sometimes it had the sense of iniquity or injustice; for a person against whom
the pnctor or judge pronounced an unjust sentence was said to have received
an injuria. (D. xlvii, 10, 1; Institutes of Justinian, lib. iv, tit. iv.) Ir\juria,
then, was used in three senses: 1. A wrongful act— an act done naOo jure; 2.
A fault committed by a judge who gave judgment not according to jus ; 3. An
outrage or affront.
*Com. Dig. Damage; Bouv. Diet, adverb.
8 INTBODUCTOBT. § 4
done as a consequence of an injury, and relates to the plaintiff.
But the terms are often used in a different sense. The injury
must not only be a violation of a right which the plaintiff is en-
titled to enjoy, but it is essential to the maintenance of an action
for the same that the plaintiff suffer legal damages thereby.
There are a large number of acts done, and accidents and casu-
alties occurring, and so there may be a lawful use of one*s own
property by which losses occur to others, but for which the law
affords no remedy.^ These arc all cases of damnum absque inr
jurid. The wrong or injury, however great, is not one in the
eye of the law — ^not recognized as such by the law. The estab-
lishment, for instance, of a rival school, which draws away
scholars from one previously established, is illustrative of such
a loss. So a man may lawfully build a wall on his own grounds
in such a manner as to obstruct the light of his neighbor, who
may not have acquired a right thereto by grant or adverse use ;
he may obstruct the prospect from his neighbor's house ; he may
build a mill near that of his neighbor, to the damage of the lat-
ter by loss of custom; he may by digging in his own land inter-
cept or draw off the water collected from under-ground springs
in his neighbor's well. These are cases of damnum absque in-
jurid^ which cannot become the grounds for an action.^ So
where neither party is particularly in fault, and an accident to
one occurs through the acts of both, it is damnum cAsque inn
juridy and the party damaged cannot recover.^ And an action
will not lie against a railroad or turnpike company for building
a road with proper care and prudence, which is authorized by
statute, although property in the vicinity is thereby damaged,
as the act is lawful, and the damage arising from its proper
construction on its own land is damnum absqite injuridJ^ Inja«
ries may arise in three ways — first, by non-feasance, or the not
doing what was a legal obligation or duty or contract to perform ;
second, misfeasance, or the performance in an improper manner
of an act which it was either the party's duty or his contract to
I Eogers v. Dutt, 13 Moore P. C. C. 209: Panton v. Holland, 17 Johns. 100; The
Eleanor, 2 Wheat. 35S.
3 Broom's Leg. Max. 197; In re Penny, 7 £1. & B. 660; Field on Damages, sees.
42,43.
^Rowland v, Vincent, 10 Met. 571.
4 Drake v. Hudson R. B. R. Co. 7 Barb. fiOS.
§ 5 DEFINITIONS. 9
perform; third, malfeasance, or the unjust performance of some
act which the party had no right or which he had contracted
not to do. In general the law interferes only when there has *
been a visible physical injury inflicted, while it leaves almost
totally unprotected the whole class of the most malignant men-
tal injuries and sufferings, unless in a few cases where, by a
fiction, it supposes some pecuniary loss, and sometimes affords
compensation to wounded feelings. A parent, for instance, can-
not sue (except when allowed by statute) for an injury inflicted
on his child, or the seduction of his daughter, unless the fact
will sustain the allegation that the daughter was his servant.
Another instance at common law arises from verbal slander, for
which in many cases a party cannot recover damages, as when
the facts published are true, for the defendant would justify,
and the party injured must fail. Perhaps the true reason is the
uncertain character of the injury inflicted, the impossibility of
compensation, and the danger, supposing a pecuniary compensa-
tion to be attempted, that injustice would be done, through un-
due excitement. The idea is to inflict a punishment for crime,
but not put up for sale, by the agency of a court of justice,
those wounded feelings which would constitute the ground of
the action.^
§ Su Injnzia Bine damna — ^The plaintiff can sustain no
legal damage unless he has a right or interest subject to, or sus-
ceptible of, damage or injury. The plaintiff to sustain an action
must have such -right or interest. It is not enough that an un-
authorized act or injury be done, but the plaintiff must sustain
a loss by reason thereof, and must have a right or interest to be
impaired. Without this, where there is injuria^ it is injuria
sine damno^ without damage to the plaintiff, and he is without
a remedy. The plaintiff must show not only injuria^ but an in*
vasion of some right or interest which he is entitled to enjoy to
the exclusion of others. And if the wrong consists in non-
performance or misperf ormance of a duty he must show he was
entitled to the performance of the duty, and not some other
party, or he can recover no dami^s.^
1 Bout. IHct.— Injniy. ^ Field on Damages, sea 634.
10 INTBODUCTOBT. §§ 6-7
§ 6. The right to damages. — ^There is, then, no right to
damages where there is no wrong. It is not requisite that there
. should be a tort strictly speaking, that is to say, a willful wrong,
an act involving moral guilt. The wrong may be cither a will-
ful, malicious injury, as in the case of assault and battery, libel,
etc. ; or one committed tlirough mere motives of interest, as in
some cases of conversion of goods, trespasses on lands, etc. ; or
it may consist in a mere neglect to discharge a duty with suita-
ble skill and fidelity, as where a surgeon is held liable for mal-
practice, or sheriff for an escape.^
§ 7. The remedy for wrongs^ — ^Among the old maxims of
the law is to be found the one that for every wrong there is a
remedy .2 Whenever the law creates or recognizes a private
right, it is also supposed to give a remedy for violation of it.'
The general principle that whenever there is fraud or deceit by
the one party and injury to the other, or damnum cum injuricL^
there an action will lie, is very often referred to with approbation,
and generally recognized as law.^ But these principles, however
true as general propositions, must be understood with such qual-
ifications and limitations as other principles of law, equally sound,
necessarily impose upon them. There may be many moral
wrongs, for which there can be no legal remedy. And there
may be many acts in which the damage to individuals may be
very great, and yet so remote, contingent, or indefinite as to
furnish no good ground of action. Thus, to maintain an action
for the deceit or fraud of another, it is indispensable that the
plaintiff should show, not only that he had sustained damage^
and that the defendant has committed a torU but that the dam-
age is the clear and necessary consequence of the tort, and that
it can be clearly defined and ascertained. So, an action on the
case for the fraud of the defendant in purchasing personal
property of the plaintiff's debtor, and aiding the debtor to ab-
scond, in order to prevent the plaintiff from enforcing payment
of his debt by attaching the property or arresting the body of
i Bouv. Die. ad Verb. *
2 3 Bl. Com. 123; Ashby v. White, 1 Salk. 21.
8 1 Clilt. PL 83; 11 Johns. 140.
^ Upton 17. Yall,C Johns. 182; Fa^ey v. Freeman, 3 T. R. 51; Eyre o. Dnxia-
f ord, 1 East, 329. <;
§ 8 GENERAL ILLUSTRATIONS. 11
the debtor, cannot be sustained ; but the proper remedy is either
to attach, specifically, the property fraudulently transferred, or
to attach it in the defendant's hands by proceedings in the na-
ture of a garnishment — provided the plaintiff has no special
property, or any interest in or claim on any property which was
destroyed or injured by any act of the defendant^
§ 8. Oaneral illnstrationB. — Damages from lawful acts
cannot usually be made the basis of an action. In the absence
of negligence, unskillfulness, or mismanagement of a railroad
compahy, in the construction of an embankment for the bed of
its road, over land through which it passes and through which
there is no natural channel for the passage of water, the injury
done by such embankment, in causing water to overflow land of
adjoining proprietors, is considered as the natural consequence
of what the company had a lawful right to do, by the condem-
nation of the land and the payment of damages therefor, and
the subsequent damage sustained thereby by the adjoining pro-
prietors is damnum absque injuria^ for which no further com-
pensation can be recovered.^
So where an incorporated town or city grades its streets, or
changes its grade so as to leave the lots of the adjoining pro-
prietor either above or below the grade, and thereby depreciates
its value, it seems to be established by an overwhelming weight
of authority that it is damnum absque injuria^ and no damages
can be recovered.* There seem to be exceptions to this rule in
1 Lamb v. Stone, 11 Pick. 526; Yemon v. Keyes, 12 East, 632. See Smith v.
Blake, 1 Day, 258; Seehom v. Darwin, 1 Const. S. G. 19G.
< Clark V, Hannibal Co. 36 Mo. 202 ; McCormick v. Company, 57 Mo. 433.
s Beading r. Keppleman, 61 Pa. 233; City of Pontiac v. Carter, Am. L. T. Aug.
1875, x>er Cooley, J.; Callender v. Marsh, 1 Pick. 418; Griggs v. Foot, 4 Allen,
106; Benjamin v. Wheeler, 8 Gray, 409; Green r. Beading, 9 Watts, 382; 20 How.
149; Henry r. Company, 8 Watts & S. 85; O'Connor v, Pittsburgh, 18 Pa. 187;
Smith tr. Washington, 20 How. 135; Macy f. City, 17 Ind. 267; Terr© Haute t;.
Turner, 36 Ind. 522; Hoffmah v. St. Louis, 15 Mo. 651; Badcliffe v. Mayor, 4
Comst. 195; Graves r. Otis, 2 Hill, 466; Wilson v. iMayor, 1 Denio, 595; Mills v.
Brooklyn, 32 N. Y. 489; Waddell v. Mayor, 8 Barb. 95; Reynolds v. Shrevesport,
13 La. An. 426; Bome t\ Omberg, 28 Ga. 46; Boll v. Augusta, 34 Ga. 326; Skin-
ner V. Company, 29 Conn. 523; Summers v. Camden, 26 Ark. 270; S. C. 7 Am.
Law Beg. 820; Schatti\er v. City, 53 Mo. 162; Taylor r. St. Louis, U Mo. 20;
HoTey V. Mayo, 43 ^le. 322; Ellis v. City, 29 Iowa, 229; Dorman v. Jacksonville,
13 Fla. 538; S. C. 7 Am. Law Beg. 233; Burlington t'. Gilbert, 31 Iowa, 356;
White ». City, 27 Miss. 327; Commissioners v. Withers, 29 Miss. 21; Murphy v.
Chicago, 29 III. 279; Boberts v. Chicago, 26 111. 249; Humes r. Mayor, 1 Humph.
12 INTKODUCTORY. § 8
Illinois ^ and Ohio. In the latter State, where improvementa
have been made in accordance with an established grade and
damages arise from a change of grade, th^ injured party has
been allowed to recover.^
Where an act, authorized by law, gives rise to damages, it is
therefore generally damnum absque injuria ; and where an un-
authorized act results in detriment or loss to another, if it is not
a damage in contemplation of law, it is injuria sine damno. The
injury must be such as the law regards as an injury, as it is not
every loss that results to the plaintiff, through the act of the de-
fendant, for which damages may be recovered.^
So where, by the working of a mine or the digging of a well
on the lands of the owner, the subterranean veins and channels
which supply the well of another on adjoining lands are cut off
and the supply of water to the latter prevented, this is damnum
absque iryuria^ and affords no ground for damages.^ Where a
stream is caused by artificial means, and is an artificial stream,
and the works at its source which caused it are suspended,
whereby the supply of water below is cut off and ceases, the
party benefited by the flow through his lands can maintain no
action against the party thus causing its suspension, if he has no
legal right to the water thus suspended.^ A person cannot main-
tidn an action for damages on account of animals ^erce naturtB;^
403. See/ also, Plate Gloss Co. v. Meredith, 4 T. R. TiH; Bolton r. Crowther, 2
Bam. & G. 703; King v. Commissioners, S Bam. & C. 365; Fayette v. Bush, 19
Ind. 326; Bounds t;. Mumford, 2 B. I. 154; Keasy v. Louisville, 4 Dana, 154;
Alexander v. Milwaukee, 16 Wis. 247; Qoszler v. Georgetown, 6 Wheat. 593.
1 Kevins v. Peoria, 41 HL 502; Aurora t\ Beed, 57 HI. 29; Aurora v. GiUett, 56
m. 132.
8 McGombs v. Akron, 15 Ohio, 474; 18 Ohio, 229; Crawford i\ Delaware. 7 Ohio
St. 459. See Bhodes t\ City, 10 Ohio, 150.
In Iowa the general doctrine was recognized, but a statute afterwards pro-
vided that, "where any city or town shall have, established the grade of any
street or alley, and any x)erson shall have built or made any improvement on
such street or alley according to the established grade thereof, and said city or
town shall alter said established grade in such a manner as to injure or diminish
the value of said property, said city or town shall pay to the owner or owners
of said property so injurpd the amount of such damage or injury." (Sec. 469,
Code 1873.)
« Donovan v. City, 11 La. An. 711.
* Acton V. Blundoll, 12 Mees. & W. 324; Chasemore v, Bichards, 2 HurL & K.
168; S. C. 7 H. L. Cas. 349; South Shield W. W. Co. t;. Cookson, 15 Law J.
Ex.315.
s Gavel v. Martyn, 19 Com. B. N. S. 732; NutaU v. Bracewell, L. B. 2 £x. 1.
^ 2 Blackst. Com. 389; Gellett v. Mason, 7 Johns. 16; 1 Hill. Torte, 479.
§ 9 GENERAL ILLUSTRATIONS. 18
or for an entry upon his lands from necessity, as where a traveler
in a highway is prevented from proceeding therein by reason of
an overflow of water or drifts of snow, and he enters upon the
adjoining lands to avoid the obstruction ; ^ or for the pulling
down of a house, when necessary to arrest the progress of a fire.
Solus populi suprema lexy and it is damnum absque injuria,^ A
person has also a right to carry off the surface water from his
land, by filling wet or marshy places, and if damage is thereby
sustained by the adjoining owner, it is damnum absque injuria,
A person may fill up low places on his lot, or erect buildings
which divert the surface water from his own land, and the city
may divert surface water, and no compensation can be recovered
farther than that considered in the original condemnation of the
street ; but neither the individual nor the corporation can inter-
fere with the natural flow of water, and make drains and collect
the water in a body, and precipitate it in a greatly increased or
unnatural quantity upon an adjoining proprietor to his injury.^
Neither a State nor a person, artificial or natural, acting by
its authority or command, under a law which the legislature is
competent to make, is answerable for consequential damages
occasioned by the construction of a highway, further than hap-
pens to be specially provided. But the authority of the State
cannot be implied for negligence or a gratuitous injury. For
unavoidable damage, however, in the accomplishment of the
object a defendant is not liable.^
§ 9. TTsa of one's own property. — An owner of land
made an excavation therein within a foot or two of a public
street, and used no precaution against the danger of passengers
falling in. A person passing in the night time went over the
1 Absor V, French, 2 Show. 28; Daws r. Hawkins, 8 Com. B. N. S. 848; Taylor
V. Whitehead, 2 Dong. 749; Bnllard r. Harrison, 4 Manle & S. 393.
'BnaseU v. Mayor, 2 Den. 461; Mayor v. Lord, 17 Wend. 285; 2 Kent's Com.
333; Field v. City, 39 Iowa, 575; Field on Damages, sec. 40.
» Goodale v. Tuttle, 29 N. Y. 459; Wheeler v. Worcester, 10 Allen, 591; Gannon
V. Haigadon, 10 Allen, 106; Dickinson v, Worcest«r,.7 Allen, 19; Dellii v. Yon-
mans, 50 Barb. 316; City v, Gilmer, 33 Ala. 116; Imlar v. Springfield, 55 Mo. 119;
liTingston v, McDonald, 21 Iowa, 116; Flaggv. Worcester, 13 Gray, 601; Miller
r. Lanbacb, 47 Ga. 260; Aurora v. Keed, 57 111. 30; Penoyer r. Saginaw, 8 Mich.
534; Sonth. L. Bev. vol. 1, p. 210; 1 Smith L. Cas.; Har. & W. Notes, 361.
* Henry v. Company, 8 Watts & S. 85; Monongahela Co. v. Coons, 6 Watts &
a 101; Philadelphia & Trenton B. B. Co. In re, 6 Whart. 43.
14 INTBODUCTOBY. § 10
line of the street, fell into the excavation, and was injured. It
was not disputed that the defendant had the right to excavate
the earth for the purpose of making cellar rooms under that
portion of the estate where the accident happened. There was
no pretense that the defendant was actuated by malice, and the
only question was whether he was guilty of such negligence as
to expose him to the plaintifiTs demand for damages by reason
of the injury sustained, on the application of the maxim, sie
utere tuo ut alienum non Icedas. The defendant had a right to
dig to the line of his estate, and as between abutters such dig-
ging is justified by ancient and modem decisions, on the princi-
ple that the proprietor has entire dominion over the whole of
his own estate.^ The defendant did a lawful act on his own
premises, and was considered not responsible for the injurious
consequences ensuing, unless it was so done as to constitute
actionable negligence, which presents a different question. Nor
did it alter the case that the plaintiff was not particularly guilty
of negligence. She went out of the highway, and met with the
accident. Where neither party is in fault, and an accident takes
place, it is equally an instance of damnum absque injuria.^ So it is
laid down in Com. Dig., (Action upon the Case for a Nuisance,
^ C ") that the action does not lie if a man makes a ditch in his
waste, which lies near the highway, within thirty-six feet of the
highway, into which the horse of another falls ; for the ditch in
his own soil was no wrong to the other, but it was his fault that
his horse escaped into the waste.^ Cases where the acts nre
lawful in themselves, but are done so negligently that an injury
immediately follows to the property or person of another, by
reason of the negligence^ as a fire kindled negligently, shooting a
gun carelessly, neglecting to take care of a dog, knowing that he
will bite, rest, as already stated, on entirely different principles.^
§ 10. Contribntory negligence. — When a party injured
contributes to the injury in some material way, it is generally
2 2 Roll Abr. 065; 1 Ibid. 88; Thurstoii v. Hancock, 12 Mass. 220; Panton v.
Holland, 17 Jobns. 92.
^Howland v. Vincent, 10 Mete. Mass. 371; Blyth v. Topbam, Cro. Jac. 158.
•IRoll. Abr. 88.
^Com. Dig. Action on tbe Case for Negligence, "A/* 5, 6; Clark v. Foot, 8
Johns. 421.
%
§ 11 GENEBAL ILLUSTRATIONS. 15
8ii£Scient to defeat the right of recovery. If some part of the
loss IS attributable to the contributory act or negligence of the
plaintiff, and a portion not, ho can only recover for such loss as
accrued without his fault ; for no one is allowed to derive an
advantage from his own wrong. And where the wrong is
equal, the condition of the defendant is the best, and the
plaintiff is without remedy. The defendant may usually show
that the plaintiff brought, or materially contributed to bring,
the injury upon himself.^ The subject will be more fully dis-
cussed hereafter.
§ 11. Ttifling injuries. — Cases of trifling injury, where no
action can be maintained, are properly cases of damnwm absque
injuria. The law will not encourage useless or malicious litiga-
tion, and although there be a trifling infringement of right,
yet if it be so trifling as to come within the purview of the
maxim de minimis non curat lex^ there is no remedy for it,
and the plaintiff cannot recover even nominal damages. The
law disregards it altogether. As where an ofiicer who had
attached a quantity of hay used a pitchfork belonging to the
debtor for the purpose of removing it, and when he had com-
pleted the work returned it uninjured to the place where he
found it, where it was received by the debtor, the officer was
held not liable for the use of the fork.^ And where the action
was brought for an escape on mesne process, but the prisoner
had returned to the custody of the sheriff, and no actual dam-
age had been sustained, it was held that not even nominal
damages could be recovered.^
So, every proprietor of land on the banks of a river has nat-
urally an equal right to the use of the water flowing in the
^ Frazer v, Berkley, 7 Car. & P. G21; Bobinson v, Hupert, 23 Pa. 554; Evans r.
Wataon, 56 Pa. 54; Prentice v. Shaw, 50 Mo. 427; Field on Damages, sec. 24,
chap. 10. See po^t^ Chapter XII.
In an action against a city to recover damages caused by a defective highway
on which plaintiff was passing in a hired carriage driven by a friend, it was held
that contributory negligence in the driver would defeat plaintifTs recover3%
(Prideanx r. Mineral Point, 43 Wis. 5ia)
> P^ul V. Sloeon, 22 Vt. 231 ; Broom's Leg. Max. 143. But see Fullam v. Steams,
» Vt. 443.
s Williams v. Mostyn, 4 Mees. & W. 144 ; Young v. Spencer, 10 Bam. & C. 145;
S. C. 21 Eng. C. L. 47.
16 INTBODUCTOBY. § 12
adjacent stream as it was wont to run without diminution or
alteration. But, streams of water being intended for the use
and comfort of man, it would be unreasonable, and contrary to
the universal sense of mankind, to debar every riparian propri-
etor from the application of the water to domestic, agricultural,
and manufacturing purposes, if the use be made without causing
material injury or annoyance to the lower proprietor. There
may be in such coses some decrease in the volume of water and '
the velocity of the current, but the maxim ^^ de minimis " is
applied, and the lower proprietor does not necessarily have a
right of action.^ The same principle applies to the rights to air
and light, and as long as the reasonable use of these things does
not produce any actual or perceptible damage to the right of
another to a similar use of them, no action will lie. A man
cannot occupy a dwelling, and consume fuel in it for domestic
purposes, without in some degree impairing the natural purity
of the air. He cannot erect d dwelling nor plant a tree near
the building of another without in some degree diminishing
the quantity of light he enjoys ; but such small interruptions
give no right of action, because they are necessary incidents to
the common enjoyment by all.^
§ 12. Interference with trade. — ^Interference with anoth-
er's trade by fair competition is never actionable. The loss in
such case, though a damage, is not considered to be caused by
a wrong. It is the exercise of a right, causing no more detri-
ment than is necessarily the result of artificial society and legiti-
mate business enterprises.^ If a fisherman fits out a boat with
lines and nets and goes to fish in the high seas, and another
fisherman comes and fishes beside him, and with tempting huts
or other contrivances draws away the fish from the lines and
nets of the first comer, and obtains them himself, an injury is
done, but there is no tort or wrong, for one has as much right
as the other to fish on the high seas ; but the rival fisherman has
no right to lay hold of the other's net, or violently disturb the
1 Sampson v. Hodinott, 1 Com. B. K. S. 590; Embrey v. Owen, 6 Ex. 369; Miner
r. Gilmour, 12 Moore P. C. C. 131; NuttaU v. BraceweU, 4 HnrL & G. 714; Wood
I'. Wand, 3 Ex. 748.
s Embrey v. Owen, G Ex. 309.
• Rogers v. Dutt, 13 Moore P. C. G. 24L
§§ 13-14 OENEBAL ILLUSTRATIONS. 17
water and drive away the fish, and thus vlolentlj prevent the
other from exercising his calling.'
§ 13. Injuries committed through necessity. — Compul-
sory and involuntary acts, as a general rule, exempt a person
from liability, and the sufferer has no redress. There may be a
necessity to do an injury, resulting from the instinct of self-
preservation ; from the actual necessity of obeying a higher and
controlling power, or necessity resulting from the act of God or
of a stranger.^ The illustration of the first case usually given
is, where two persons, being shipwrecked, have got on the same
plank, but finding it not able to save them both, one of them
thrusts the other from it, and the latter is drowned. The sur-
vivor cannot be held liiable to the relatives of the victim for the
great injury inflicted, nor is the act considered any other than a
justifiable homicide. The act is regarded as done through una-
voidable necessity, and excused upon the right of self-preserva-
tion. If a ferryman overload his boat with merchandise, a pas-
senger may, in case of necessity, and to save his own life and
that of his fellow passengers, throw the goods overboard, or at
all events 8u£5cient of them to lighten the boat and afford safety.^
Obedience to existing laws will, as a general proposition, render
an injury inflicted in obeying them damnum absque injuria — as
when a proper officer executes a criminal in strict conformity
with his warrant for so doing issued upon a legal sentence, and
where he properly executes legal process. He is the servant of
the law, and acting in obedience to it.
§ 14. Rnles of pnblic policy — ^Eminent domain, etc. —
That regard be had for the public welfare is the highest law.
Solus populi suprema lex. There is an implied assent on the
part of every member of society, that his own individual welfare
shall in cases of necessity yield to that of the community,
and that his property, liberty, and even his life shall, under
given circumstances, be jeopardized or sacrificed for the public
1 YoQBg V. Hichens, G Q. B. 006.
3 Bao. Max, reg. 5; 1 T. B. 02; Broom's Max. *11.
s Moose'H Case, 12 Rep. G3.
* Garland r. Carlisle, 2 Cromp. & M. 77; S. C. 4 Clark & F. 701.
D. A. I.— 2.
18 INTBODUCTOBY, § 14
good.^ There are many cases, therefore, in which individuals
sustain an injury for the public good, and for which the law gives
no action, as where private houses are pulled down or bulwarks
raised on private property for the preservation and defense of
the State against public enemies. Commentators on the civil
law have said that in such cases those who suffer have a right to
resort to the public for satisfaction,^ but the common law never
gave an action against the indvoidual who pulled down the
house or raised the bulwark ; ^ and so, on the same principle, a
man may justify committing a private injury for the public
good, as pulling down a house when necessary to arrest the
progress of a fire.^ Upon the kindred principle that a private
mischief shall be endured rather than a public inconvenience, if
a highway be out of repair and impassible, a passenger may
lawfully go over the adjoining land, since it is for the public
good that there should be at all times free passage along thor-
oughfares for citizens of the State.^ So if a traveler on a high-
way, by unexpected and unforeseen occurrences, as a sudden
flood or heavy drift of snow, is so obstructed that he cannot
reach his destination without passing over adjacent lands, he is
privileged so to do. The temporary and unavoidable use of
private property, under the circumstances, is regarded as one
of those incidental circumstances to which all property in a
civilized community is subject. It is for the general good.
The party is not a trespasser and the owner of the property
has no redress against him. If there is damage in the proper
and reasonable exercise of the right necessitated by the occa-
sion, it is damnum absque injuria and no action will lie.^ So,
1 Broom's Leg. Max. 1 ; Bacon Max. Beg. 12; Grotius, De Jure Belli, bk. 3, cUap.
20, s. 7, sec. 1; Mont. Esp. des Lois, L. 27, chap. 23. In casa extrenuB necesBUaUt
omnia nmt communia. (1 Hale P. G. M).
s Puff. De Jure Nat bk. S, chap. 5, sec. 7; Grotius De Jure BelL et Pac. bk. 3,
chap. 20, 8. 7, sec. 2.
•Plate Glass Co. v. Meredith, 4 T. B. 797; West Biver Bridge Ck>. v. Diz.C
How. 545; Mitchell v. Harmony, 13 How. 115; Koy, Max. 0th ed. 36; Dyer, GO 6,
12 Bep. 12, 13.
*Noy,Max. 9thed.36; Dyer,aS&. 00&; 12 Bep. 12; Plow. 322; Finch, 39; Bus-
sell V. New York. 2 Denio, 461, 474.
c Absor V. French, 2 Show. 28; A. G. v, Briant, 15 Mees. & W. 185; 2 Kent.
Com. 390.
« Taylor v. "Wliitehead, 2 Doug. 749. per Ix>rd Mansfield, C. J.; BuUard v. Har-
rison, 4 Maulo & S. 393, per I^rd Ellcnborough, C. J.; Dawes v, Hawkins, 8 0.
B. N. 8. 818; 98 £ng. C. L. B. ; Bobertsou v. Gantlett, IG Mees. &; W. 296.
§ 15 GBNEBAL ILLUSTllATIONS. 19
alaoy as to more ordinary occurrences, where the le^slature,
on account of public utility, disturbs the possession or restricts
the enjoyment of the property of individuals, as in cases of
distresses, executions, forfeitures, confiscations, taxes, etc. ; but,
of course, the legal authority must be clear and distinct.^
And for the public utility, the legislature may interfere with
private property, and compel the owner of land to alienate his
possessions, on receiving a reasonable price and compensation ;
but the power is not to be exercised to a greater extent than
is absolutely necessary for the public welfare.^ So, where
commissioners appointed by a paving act occasioned damage to
an individual, without any excess of jurisdiction on their part,
neither the commissioners nor the paviors acting under them are
liable to an action, the statute under which the commissioners
acted not giving them power to award satisfaction to the individ-
uals who happened to suffer ; and it was said that some individ-
uals suffer an inconvenience from all such statutesii but the
interests of individuals must give way to the accommodation of
the public.^ It is necessary, however, that there be no negli-
gence in the performance of the acts allowed, and that they be
done with full authority from the law.
§ 15. Assumption of family names. — The right of a
person to a particular name is not recognized to the extent of
entitling him to prevent the assumption of that name by a*
stranger. The right to the exclusive use of a name in connec-
tion with a trade or business is familiar to English and Ameri-
can law, and any person using that name after a right to it has
been acquired by another is considered guilty of a fraud, or, at
least, of an invasion of another's right, and renders himself lia-
ble to an action, or he may be restrained from the use of the
1 A. 0. V. Lockwood, 9 Mees. & TV. 4D1; Entick v. Caninfcton, 19 How. St Tr.
1066; Goeling v. Veley, 12 Q. B. 407; a C. 4 H. L. Cas. 727; Binder v, Yeley, 12
Ad. & E. 247; Denn v. Diamond, 4 Bam. & G. 245; A. O. v. Middleton, 3 HarL
& N. 138; Broom's Leg. Max. *3.
'Tawney v. Lynn, &c, IGL. J. Ch. 282; 1 Mylne & K. 162; Webb v. Man«
cheater &c, 4 Mylne & C. 116; Simpson v. Howden, 1 Keen, 598; Lister v. Lob-
ley, 7 Ad. & £. 124.
> Plate Glass Co. v. Meredith, 4 Term Bep. 794; Boulton v. Crowther, 2 Bam.
& C. 703; Alston v. Scales, 9 Bing. 3; Sutton v. Clark, C Taunt. 29; Wilson v.
Mayor, 1 Denio, U. S. 595; Pilgrim v, Southampton &c. 7 Com. B. 228; Mayor t*.
Company, 2 DeGex, M. & G. 852.
20 INTBODUCTOBY. §§ 16-17
Ik
name by injunction. But the mere assumption of a name which
is the patronymic of a family by a stranger who had never
before been called by that name, whatever cause of annoyance
it may be to the family, seems to be a grievance for which the
law affords no redress, and which is dafMiuvn cibsque it^ria*^
§ 16. InjnrloB arising from felonies. — ^Where the act of
another, though productive of injury to an individual, amounts
to a felony, the private remedy is (unless a statute intervenes ^ )
suspended until justice is satisfied. So a man cannot make a fel-
ony the ground of a civil action, nor waive the felony and go for
damages ; and where, at the trial of an action, the case is found
to involve a charge of felony against the defendant which has
not been prosecuted, the Court may properly direct a verdict to
be entered in his favor .^ But this does not apply to mere mis-
demeanors, such as assault, battery, etc.
§ 17. Xnjnrles by grantees of franchises. — When prop-
erty is actually taken for public works, the constitutions of the
States generally declare that compensation must be made ; but
there are cases where consequential injuries may be inflicted by
the grantees of a franchise ; and the general rule, in the absence
of constitutional or statutory provisions, is, that if the grantees
or agents have not exceeded the power conferred on them, and
when they are not chargeable with want of due care, no claim
can be maintained for damages resulting from their acts. So,
it is held that a party obstructing a stream by a railway, built
pursuant to legislative authority, and thereby causing the lands
of the adjacent proprietors to be overflowed, is liable only for so
much of the injury as results from not providing necessary safe-
guards ; and the same principle is applied to damage done by
municipal corporations in making improvements authorized by
I Da Boulay v. Bu Boulay, L. R. 2 P. C. 441.
s See Buch a statute, 9 and 10 Vict. chap. 93, amended by 27 and 28 Vict, cliap.
05.
A Stone V. Marsh, G Bam. & 0. 557; Wellock v. Constantino, 2 Hurl. & C. 146;
Pym v. Company, 2 Best & Smith, 759; 4 Ibid. 396; White v. Spettigue, 13 Mees.
&\y. G03; Lee v. Bayes, 18 Coul B. 599; Choune v. Baylis, 31 L. J. Ch. 7;>7;
Crosby v. I^ng, 12 East, 409: Williams f;. Bay ley, K R. 1 H. L. 200; 1'} Aloes. &
W. 008; Higgins v. Butcher, Yelv. 89.
§ 17 GENERAL ILLUSTHATIONS. 21
law.^ A municipal corporation is not liable for damage to pri-
vate property, unless the act complained of was without author-
ity of or against law, or was improperly or wantonly executed.^
It is said that if different rules should prevail, the absurdity
would follow that operations undertaken and conducted by vir-
tue of the supreme authority are unauthorized in the view of
the law and constitute a foundation for damages. ^^ The proper
light in which to regard the matter is, to consider the grantee
of the franchise, or the public agent, so long as he does not
transcend the authority conferred on him, as representing the
government, and the government as acting under its right of
eminent domain, subject, of course, to the duty to provide com-
pensation, where that duty Is imposed by the constitution, and
to that only.^ And In accordance with this doctrine It has been
held In numerous cases that neither a State nor a person, natural
or artificial, acting by Its authority under a law which the leg-
islature is competent to make. Is answerable for consequential
damages occasioned by the construction of a highway, to any
greater extent than Is specially provided by the law itself.*
And any inconvenience or damage suffered In consequence of
the proper and reasonable repairs of a public highway by a
plank-road corporation, in the legitimate exercise of the powers
conferred by the statute, is damnum, absque injuria^ and no ac-
tion lles.^ The protection is extended not merely to the imme-
diate grantees of the franchise, or the Immediate agents of the
government, but also the sub-agents or Inferior employees, who
•
1 Bellenger v. Company, 23 N. Y. 42; Kavanagh v. City of Brooklyn, 38
Barb. 232.
< Bennett v. New Orleans, 14 La. An. 120.
* Sedg. Meas. Dam. nil.
^ Henry v. Company, 8 Watts & S. 85; Callender v. Marsh, 1 Pick. 418; Boston
& B. M. D. Corporation v. Kewman, 12 Pick. 467; Boston &c. Company v.
Boston &c Company, IG Pick. 512; S. C. 23 Pick. 3G0; King v. Company, 2 Bam.
& Aid. 64G; Governor &c. v. Meredith, 4 T. B. 794; Sutton v. Clark, G Taunt. 29;
Lansing t;. Smith, 8 Cowen, 14G; Wardens v. Donne, 3 Scott, 356; Bolton t;. Crow-
ther, 4 Dowl. & B. 195; King v. Commissioners, 8 Bam. & C. 355; Queen v. Com-
pany, 1 Crall. & D. 589; Lehigh Bridge Co. v. Lehigh Coal Sec. Company, 4 Bawle,
9; Or«vesv. Otis, 2 Hill, 466; Jermaine v. Waggoner, 1 Hill, 279; 7 Hill, 357;
Livingston v. Adams, 8 Cowen, 175; Steele v. President &c. 2 Johns. 283.
< Benedict v. Goitt, 3 Barb. 459; Bord. v. Company, 2 Har. 314; Hollister v.
Company, 9 Conn. 436; Hooker v. Company, 14 Conn. 146; Burroughs v. Com-
pany, 15 Conn. 124; BadclifiTs Executors v. Mayor of Brooklyn, 4 Comst. 195;
Hatch t;. Company, 25 Vt. 49. See, contra^ Baritan Co. r. Lee, 2 Zab. 243.
22 INTRODUCTORY. § 18
•
are acting under the same general authority. The loss sustained
in all such cases is damnum absqiie injuria^ In a case of great
hardship in New York, where, in grading a street, the ground
was cut down so as to injure an adjacent proprietor, but none
of his land was actually taken, it was declared that the loss
was damnum absque injuria ; that the constitution had made no
mention of indirect or consequential damages; and although
the proprietor had actually suffered injury, still it could not be
said that property had been '* taken for public use " within the
meaning of the constitution.^
§ 18. Consent to or acqoiescenoe in injnxiea — ^Acts of
the sufferer. — ^That to which a person assents is not usually es-
teemed in law an injury. Volenti non Jit injuria. It is a general
rule that no one can maintain an action for injuries where he has
consented to the act producing them.^ Such would, at common
law, be the position of a man who consents to his wife's adul-
tery.^ So, to make use of a somewhat dissimilar illustration,
although the deck of a vessel is prima fade an improper place
for the stowage of a cargo, yet when the loading on deck has
taken place with the consent of the merchant, there is no rem-
edy against the ship-owner or the master for the wrongful load-
ing.^ So, if a person says generally " there are spring guns in
this wood," and another is rash enough to go into the wood, he
does so at his peril, and must take the consequences of his own
act. No one, who is a trespasser upon premises, can impose
upon the owner a duty to have them in safe condition, and
1 Monongahela Bridge Co. v. Kirk, 46 Pa. 112; Clarke v. Company, 41 Pa. 147.
See, contra^ Tinsman v. Belvidere Company, 2 Dutch. 148.
3 Badcliffs Executors v. Mayor of Brooklyn, 4 Comst. 196. In reference to
this decision, Mr. Sedgwick, (Meas. Damages, *112) remarks: *'It appears to me
the decision is an unfortunate one, altliough sound, perhaps, on a strict constrno-
tion of the constitutional clause. But it is to be regretted that the Court felt
itself bound to apply a strict instead of a liberal interpretation. The tendency
of our legislation, in matters of public improvement, is undoubtedly to sacrifice
the individual to the community ; and wo cannot attach too much importance
to those provisions of our fundamental law wiiich are framed to protect private
property against encroachments, which, though sanctioned by legislative enact-
raent, are, in truth, often dictated by private interests."
8 Broom's Leg. Max. sec. 268; Atty-Gen. v. College, SO L. J. Ch. 769; Ooold r.
Oliver, 4 B. & C. 142; Hudson o. Ayers, 1 £. & E. 148.
^Duberley v. Gunning, 4 T. B. 657; Winter v. Henn. 4 C. & P. 496.
« Gould V, Oliver, 2 Scott, N. R. 257.
§ 19 OENEBAL I LLUSTUATIQNS. 23
therefore, if one falls into .a pit dug into a field, which he is
taking the liberty of crossing, it is the act of the injured party
and he has no redress.' The maxim has frequently been ap-
plied to voluntary payments of money when there was no legal
or equitable requirement so to do, and moneys paid without pro-
test, but in ignorance of the law, which cannot be recovered
back.^
§ 19. The non^aowrctoe of powers by municipal corpo-
rations. — ^The power which may be possessed by municipal cor-
porations, to act through their agents in respect to any particu-
lar matter, such as to provide sanitary regulations, and for the
arrest of infectious diseases or of conflagrations, does not appear
to make them liable for negligence in not exercising these pow-
ers. The State law relating to cities constituted the mayor and
council a board of health, with power to make ^^ regulations in
relation to cleansing the streets, aUeys, and drains of the city or
town ; in relation to communication with houses where there is
any infectious disease ; to establish pest-houses or hospitals ; and
when deemed expedient and necessary to prevent the spread of
any contagious disease, to remove to said pest-house or hospital
any person sick with the Asiatic or malignant cholera, or other
malignant or infectious disease ; ^* the neglect to exercise such
powers or make such regulations was held not to render the
city liable for any losses resulting therefrom. An action was
brought against the city for neglecting to take precautions to
prevent the spread of small-pox, whereby the plaintiff was ex- ^
posed to the contagion and communicated the disease to his two
children, who died thereof, and it was so held. The court
said: ^^The principle which would hold the defendant liable
for the negligent acts here complained of would compel a city
to respond in damages for the neglect of its police to suppress a
riot, the failure of its firemen to arrest a conflagration and the
negligence of its physician in prescribing for a patient. It is
impossible to conceive of the endless complications and embar-
rassments which such a doctrine would involve and the extent
^Graatret v. Egerton, L. R. 2 C. P. 371; Jordin r. Cramp, S Mees. & W. 787;
Home V. Widlake, Yelv. 141; Barnes r. Ward, 9 Com. B. Sf2,
- See Broom's L^. Max. *S72, and cases cited and reviewed.
24 INTRODUCTORY. § 20
to which the public intereets would ^thereby suffer. It is safo
to assume that if such were recognized as the law, no town
would voluntarily assume corporate functions, and every indus-
trial and commercial interest would become paralyzed. The
true doctrine is that the powers conferred in the sections wc
have been considering arc of a legislative and governmental
nature, for a defective execution of which the city cannot be
held liable. In discharging these legislative functions, the city
acts as a quasi sovereignty, and is not responsible for a neglect
or non-performance of its officers or agents." ^
And where a city ordinance provided for the opening of a
street through the lands of two parties, and one of them obtained
a temporary injunction restraining the same, but on a final hear-
ing it was dissolved and the street was opened, and a suit was
brought on the injunction bond by the other party, claiming
damages thereon on account of a depreciation in the value of
the land, and of loss by the delay in the opening of the street,
caused by the injunction, and loss thereby of sales of lots there-
on, which he might have made, it was held that he was deprived
of no legal right by the injunction, none which the bond was
intended to protect ; that he acquired no privilege or right to
the use of the street and sustained no injury for which he could
claim redress by an action on the bond.^
A statute, it is held, which requires the overseers of highways
to repair and keep in order the highways within their road dis-
tricts, does not impose an absolute duty so as to make the over-
seers liable in a civil action for the non-performance. So far as
the action for damages is concerned, if the public suffers, it
seems to be damnum, absque injuria.^
§ 20. Publication of uncalled -for lettezB. — An action
was brought by the publishers of a daily paper against the city
postmaster, in which the plaintiffs claimed that they were the
publishers of a paper having the largest circulation of any pub-
^ Ogg V. City, 35 Iowa, 495. See Wheeler v. City, 19 Ohio St 19; Brinkmeyer
r. City, 29 Ind. 187; Western College, &c. v. City, 12 Ohio St. 375; Smoot v. We-
tumpka, 24 Ala. 112.
3 Stewart r. Maryland, 20 Md. 97; Field on Damages, sec. 37.
< Bartlett v. Crozie^ 17 John. 438: Garlinghouse v, Jacobs, 29 N. Y. 297. Bee.
also, Wilson v. Halifax, L. R. 3 Ex. 114; Burnett v. New Orleans, 14 La. An. 120;
Smoot V. Wetumpka, 24 Ala. 112; Soper v. Company, 26 Iowa. 2G4.
§ 21 gen£;bal illustrations. 25
lished in the citj, and that it was the duty of defendant, under
an act of Congress, to advertise uncalled-for letters in their pa-
per, and that the defendant had refused so to do ; whereby they
had been deprived of profits which would otherwise have accrued
to them therefrom. The defendant demurred, on the ground
that it did not appear that the plaintiffs had any vested right in
the advertising of the letters uncalled for in the post-office, nor
that the duty on the part of the defendant to advertise the let-
ters uncalled for at the post-office was a duty to the plaintiffs,
or in the due performance of which the plaintiffs had any exclu-
sive interest or right. The demurrer was Sustained. The court
on appeal held that there was no foundation whatever for such
an action ; that whenever an action is brought for a breach of
duty, the party bringing it must show that he had an interest
m the performance of the duty, and that the duty was imposed
for his benefit ; that when the duty is imposed for the benefit of
another, or for the public benefit, and his own advantage is
merely incidental, and no part of the design of the statute, no
such right is created as forms the subject of an action ; that the
act of Congress providing for the advertising of uncalled-for let-
ters was not passed to confer profitable employment upon pub-
lishers, but to benefit persons likely to receive communications
through the post-office ; that the statute secures to publishers no
fixed and absolute right, and imposes on them no duty, and that
they have no such interest as gives them a right of action under
the statute.^ So in Iowa, the statute provided that the boards
of supervisors of the several counties should select two newspa- ^
pers, having the largest circulation, in which to publish the pro-
ceedings of the board, and the laws of the General Assembly of
the State. It was held that the proprietor of a newspaper had
no such private or personal interest in the publication of such
laws and proceedings as that he could in his own name maintain
an action to compel the board by mandamus to order the publi-
cation in his paper.'
§ 2L Iitfringeinent of patentee — When the means em-
ployed in a machine of later date are different not merely in
1 Strong V, Campbell, 11 Barb. 135.
• « Welch V, Board &c. 23 Iowa, 109; Smith v. Yoram, 37 Iowa, 89.
26 INTBODUCTOBT. § 22
form, but in substance, and consist in combinations differing in
substance, there is no infringement of a patent, though the ob-
ject be to produce the same result. A defendant constructs a
machine for obtaining a current of air between the grinding sur-
faces of millstones, hj means of a rotating vane, for effecting
which the plaintiff also has a machine, protected bj patent.
The plan of the defendant is to remove from the center of both
stones a large circular portion, and in this space, opposite the
opening between the two stones, to place a fan, by the rapid ro-
tation of which a centrifugal motion is given to the air, driving
it between the stones! The plan of the plaintiff consists of a
portable ventilating machine, blowing by a screw vane, which
causes a current of air parallel to the axis of the vane, being at-
tached externally to the eye of the upper millstone; and the
screw vane being thus set in rapid motion, the air is forced
through the eye into the center of the stones, and bO finds its
way out again. The defendant's machine is not an infringe-
ment of the plaintiff's patent.^ An unauthorized sale of a pat-
ented machine must be a sale of the complete machine. The
«ale of the materials or portions of it is not enough.^ The sale
or use of the product of a patented machine is no violation of
the exclusive right to use, construct, or sell the machine itself ;
and the patent for a discovery of a new and improved process,
by which a new process or manufacture before known in com-
merce may be made in a better and cheaper manner, grants
nothing but the exclusive right to use the process.'
§ 22. Escape of dangerous elements or snbstanceB. —
If the damage occasioned by the escape of dangerous elements
or substances be produced by vis majoTj or by the act of God,
or without the intervention of acts of the occupant or his
agents, the defendant is not liable, though he may have brought
the dangerous element or substance upon his premises. To il-
lustrate the first part of the proposition, if damage by flooding
is caused by lightning bursting a well-constructed reservoir,
there can be no liability. To illustrate the non-liability for acts
without the intervention of the occupants, the defendant's ten-
I Bovill V. Pimm, 11 Ex. 718. ^ Sawln v. Guild, 1 Qall. 485.
•Goodyoar V. Bailroad, 2 WalL C. C. 366.
§ 22 GENERAL ILLUSTBATIONS. 27
ants, the plaintiffs, occupied the lower story of a warehouse, of
which the defendant occupied the upper. A hole had been
gnawed by rats through a box into which water from the gut-
ters of the building was collected, to be thence discharged by a
pipe into the drains. The water pouring through the hole ran
down and wet the plaintiff's goods. The defendant was held
not liable.^ So also, if the bringing of the dangerous element.
upon the occupant's land, and all the works. connected therewith
be under legislative sanction, the resulting damage by natural
escape or by authorized channels, and not by reason of negli-
gence attributable to the occupant, will perhaps not render the
occupant liable, at all events not if the escape be caused by
vis major. As, if one be charged by law with the duty of
maintaining water tanks for purposes of irrigation for the pub-
lic welfare, and by reason of an extraordinary flood, and not of
the bad condition of the tank, it gives way, causing damage to
the plaintiff, he cannot recover.^
1 Gantaiist;. Taylor, L. B. 6 Ex. 217; Ross v. Fedden, L. R. 7 Q. B. 661. See
Donpe V. Geoin, 45 N. Y. 119; Wilson v. Kewbeny, L. B. 7 Q. B. 31. But see
Marshall v. Cohen, 44 Ga. 489.
9>Iadras By. Co. r. The Zemindar, L. It. Ind. App. 364.
28 PERSONAL IKJUBIE8. § 23
CHAPTER n.
PERSONAL INJURIES— INJCBIES TO RELATIVE RIGHTS.
§ 23. General plan.
§ 24. Personal injuries.
§ 25. Injuries by infants and non-compotes.
§ 26. Injuries resulting in death.
$ 27. Assault.
§ 28. Assaults in self-defense, etc.
§ 29. Defense of relatives, friends, etc.
§ 80. Moderate correction by parents, etc
§ 31. Injuries to licensees.
§ 32. Injuries to workmen.
$ 33. Injuries to trespassers.
S 31 Injuries inflicted by masters of ships upon their crew.
$ 35. Injuries from animals.
§ 36. Seduction.
§ 37. Criminal conversation.
§ 38. Connivance of the plaintiff.
$ 39. Infidelity of the husband— Neglect of wife.
§ 23. General plan. — ^It will be our purpose to consider the
subject of Damnum Absque Injuria as follows : It is true, as a
general proposition, that a person has a right to be secure in
his life, his person, his liberty, health, reputation, and property,
real and personal ; and further, that for a violation of this secu-
rity, for an injury to any of these things, he can recover some
6oi*t of damages. We shall consider the cases of injury to
these things in their order where no damage can be recovered —
where the law imputes no wrong and therefore gives no redress.
The subject of injuries to real and personal property will in-
clude chapters or injuries to the holders and ovmers of stocks
and shares in incorporated companies, coming under the general
head of conversion of personal property; and the subject of
injuries to real property will include a chapter on injuries from
mining operations, and a chapter on injuries to subterranean
and surface streams and percolating waters. This will be fol-
lowed by a consideration of subjects which it will be found con-
venient to consider separately, such as injuries arising from the
§§ 24-5 INJURIES TO RELATIVE RIGHTS. 29
■
nonfeasance, misfeasance, and malfeasance of public officers,
and the subject of injuries arising from negligence.
§ 24. Personal injuries. — ^In actions for damages for per-
sonal injuries, such as for assault, battery, etc., certain facts
constitute a complete defense, and the injury, if any there be,
may be said to be damnum absque injuria. Such are cases
where the injury was done in self-defense, where it was done to
prevent a breach of the peace, suppress a riot, or to prevent the
commission of a felony; where it was done in the reasonable
defense of one's house, lands, or goods ; where it was done nec-
essarily in the execution of legal procesis ; where it was done in
the reasonable defense of one's wife, husband, parent, child,
master, or servant. But if the defendant uses more force or
inflicts more injury than is necessary, he is liable for the injury
in excess of what was required for the purpose. No more force
is to be used than is necessary to prevent the violence impend-
ing, nor is any force to be applied in defense of the possession
of property until the trespasser has been warned to desist, or
requested to depart, except in the case of a violent entry or
taking by a trespasser, for otherwise the party interfering to
prevent the wrong may himself be guilty of an assault.^ In-
evitable accident or casualties occurring without any fault have
generally been held an excuse for an injury resulting in loss,
whether the party through which it occurred was an adult, and
of sound mind, or an infant, or a person of unsound mind.^
§ 25l Injuries by infants and noncompetes. — Ground
has been taken against the liability of lunatics and insane persons
for their torts. The argument is that torts are of two classes —
intentional and willful injuries to the person, property, or char-
acter of another, or those arising from want of care. Willful
or intentional wrong can only exist where there is a mind to acL
Without such mind no intent can be formed. Hence in slander
and libel no action will lie against a |)erson who is insane.^
^ Greenleaf on Evidencei sec. 05; Field on Damages, seo. 616.
« ParroU v. Wells, 15 Wall. 224; Dixon v. Bell, 5 ^L & S. 198; Bro%vn t?. Collins,
53 K. H. 442; Bissell r. Baker, 19 Ark. 308.
* Bryant v, Jackson, 6 Humph. 199; Yates r. Reed. 4 Blackf . 463; Dickinson r.
Barber, 9 Mass. 225; City v. Vanacker, Garth. 483; Townshend, Slander and Libel,
430.
80
PERSOKAL IXJUBIES.
§25
Coke said a madman is only punished by his madness. Sedg-
wick, in his work on damages, says : ^ *^ In case of the compos
mentis^ although the intent be not decisive, still the act punished
is that of a party competent to foresee and guard against the
consequences of his conduct, and inevitable accident ha:^ always
been held an excuse. In case of the lunatic it may be urged,
both that no good policy requires the interposition of the law,
and that the act belongs to the class of cases which may be
termed inevitable accidents." A person who is clearly insane,
or an idiot, or a child of very tender years, it is argued, is not a
cause of injury, but a condition. He belongs to those natural
forces which, like weapons of wood, stone, or iron, are incapable
of moral choice, but act only as they are employed or impelled.
They cannot be a judicial cause, but may be used in producing
an effect when controlled or made to act by another.^ In Rail-
road V. Gladman, 15 Wall. 401, the lower court charged the jury
relative to the contributory negligence of a child as follows:
" You have got to adopt one of two rules here : either to judge this
child's conduct under the measure of his years and the measure
of his discretion, or pronounce that no action lies in behalf of a
child, or demand of the child a measure of judgment that nature
has not given him, which would be a greater outrage on good
logic than to pronounce he had no remedy. • • • The
degree of accountability varies with the age and capacity of
individuals, until you get to a point where he or she is utterly
disqualified from protecting him or herself.*' The judgment for
the plaintiff was affirmed. In Lynch v. Nurdin, 1 Ad. & E. N.
S. 29, the child was a direct trespasser, yet recovered for negli-
gence of the owner of the cart, left standing in the street with
the horse unhitched. The child got into the cart, and the horse
ran away and injured the child.^ In an Illinois case the court
say we cannot impute negligence to a child of such tender
years, (not quite five years old) and especially to one of less
1 6th ed. p. 555; Harj. p. 465, 456.
s South L. Bev. N. S. 346, vol. 1. See Whart. on Negligence, sees. 87, 88, 30 J,
a07, 309, 310; Bartonshill Coal Company v. Reed,3 Macq. 266; Bartonahill Coal
Com]>any v. McOuire, 3 Macq. 300; Chicago & Alton R. B. v. Gregory, 58 111. 225;
Grizzle v. Frost, 3 Fost. & F. 622; Coombs v. New Bedford Cordage Co. 102 Mass.
572. See, also, Biige t'. Gardner, 10 Conn. 507: Daley r. B. B. Co. 26 Conn. 59;
B. B. Co. V. Stout, 17 Wall. 657.
• Chicago B. B. r. Gregory. 58 III ^i.
§ 25 INJURIES TO RELATIVE RIGHTS. 31
than ordinary capacity. There are also other cases which seem
to hold that the child may recover against one who has negli-
gently injured it, and the negligence of parents or guardians is
not imputable to it where the action is by the child ; otherwise,
where the parent sues for loss of service.* The theory of these
cases would appear to be that the child is required to exercise
what capacity it has to avoid danger, which would be that ordi-
narily exercised by children of its age. But if the child pos-
sesses less capacity, it may bo shown ; but the defendant, unless
he has knowledge of the mental defect, would have a right to
treat it as possessing ordinary apparent capacity.^ It is further
argued that all liability for torts rests upon the basis that the
party charged has done a wrongful or culpable act, either inten-
tional wrong, or the failure of himself or agent to use ordinary
care. Ordinary care is measured by the intellect the actor pos-
sesses, or is presumed to possess. The person who is Tvon com-
pos mentis should not be made civilly responsible for failure to
exefcise a power he docs not possess. The great principle on
which all law rests is that it commands that which is right, and
forbids that which is wrong. This presupposes a knowledge of
right and wrong. The law does not require impossible things.
Insanity is an act of God. Why should the estate of the mad-
man be chargeable for acts he cannot prevent ? The act of God
is always an excuse. Such are the consequences of tempest and
earthquake.^ But, on the other hand, it is said, with equal
positiveness, that infants and lunatics are liable for all actual
damages for injuries inflicted, to the same extent as adults and
those of sound mind. It has been considered a matter of ob-
vious justice that, where one person, however innocent, causes
an injury and loss to another, without any fault of the in-
jured party, the former should be held to indemnify the latter
for the loss sustained.^ And so it has been said that infants
1 Xorth Pacific XL R. v. Hahoney, 31 Pa. 187; City ». Ruby, 8 Minn. 169; CalnU
V, Eastman, 18 Mtnn. «K24; Bronson v. Soathberry, 57 Conn. 199; Bolano v. R. R.
36 Mo. 400; Robinson v. Cone, 22 Vt. 213; Belfontaine R. R. r. Snyder, 18 Ohio
St 399.
sSchierbold v, K. B. & M. R. R. Co. 40 Cal. 447; IlL Cent. R. R. Co. v. Buclc-
ner,28I11.299.
siSoath. IxR.K. S. 346.
^Hatfield t7. Roper, 21 AVend. G15; Morse o. Crawfoid, 17 Vt. 499; Williamri v,
Cameron, 26 Barb. 172; Bumard o. Hagsis, 14 Com. B. N. S. 4o; 32 Law J. Coin.
82 PERSONAL INJURIES. § 26
and persons of unsound mind are liable for injuries caused by
their tortious negligence, and so far as their responsibility is
concerned, they are held to the same degree of care and dili-
gence as persons of sound mind and of full age. This is neces-
sary, because, otherwise, there would be no redress for injuries
committed by such persons, and the anomaly might be witnessed
of a child having abundant wealth depriving another of his
property without compensation. And it is further said that such
persons are held civilly for trespasses and torts, as the actionable
qualities of such acts do not depend upon intention.^ In the
class of cases first adverted to, a wrong done by such persons as
we have been considering may be said to partake of the nature
of damnura absque injuria* According to the other authorities,
it does not, and the law affords the remedy.^
§ 26. Injuries resulting in death. — At common law, no
action could be maintained for an injury resulting in the death
of a person, or for losses sustained to others by the death. This
was a rather startling instance of damnum absque injuria. Lord
Ellenborough once remarked, that ^^ the death of a human being
cannot be complained of as an injury."^ And in an Iowa case
it was said, that '^at common law, if one person assaulted and
beat another, the person assaulted and beaten might have his
action and recover damages therefor ; but if the beating was so
P. 189; "Weaver r. Ward, Hob. 134; Penrose v. Curren, 3 Kawle, 351; Bessej ©.
OUiott, T. Baym. 467; Sutton v, Clark, 6 Tannt. 44; Philliter v. Phippard, U
Ad. & El. N. S. 347; Bullock v, Babcock, 3 Wend. 391; Conklin v. Thompson, 29
Barb. 218.
1 Behrens v. McKinzie, 23 Iowa, 343, per Dillon, J. ; Morse t>. Crawford, 17 VU
490; Shearman & Redf. on Neg. sec. 557; Bush v. Pettibone, 4 Comst. 300.
^ By the French law, as the principle of responsibility, civil as well as crimi*
nal, implies a fault imputable to the doer of the harmful act, the insane and
minors under the age of discernment are freed from all responsibility, civU aa
well as criminal. This is considered no injustice. Although the one who causes
the damage is rich, he is not obliged to indemnify the sufferer, who may ba
poor; for it is a case of accident, as much as if a tile should fall from a roof and
kill a person beneath. Drunkenness, voluntarily produced, is, however, no ex-
cuse for a wrong. (See article on '* Torts under the French Law,'* in 8 Am. Law
Be view, April, 1874; and a French treatise entitled Traits GAi^al de la i2e<poi»-
sahllitiou de I * Action en Dommages—inUrets en dehores de» contracts. Par M. A.
Sourdat, Docteur en Droit, Conseiller ti la Cour d'Appel d' Amiens, 1872.)
3 Baker v. Bolton, 1 Camp. 403. See, also. Carry v. Company, 1 Cush. 475;
Hyatt V. Adams, IG Mich. ISO; Edon v. Lexington B. B. Co. 14 B. Mon. 204; 1
IlilliaKl on Torts, 83.
§ 26 INJURIES TO RELA'^IVE RIGHTS. 33
severe as to produce death, then the wrong-doer was exempt
from liability to damages in a civil action.'' ^ Dillon, J., has
attacked the doctrine with great severity, as unsustained by
reason and incapable of vindication. He maintains that the
doctrine is not deeply rooted in the common law, and ought not
to be followed in a state where the subject is entirely open for
settlement. He further remarks, that " it would be different if
the rule had been settled in England by a long course of decis-
ions made prior to the settlement of this country, as in that event
the courts here would find it less difficult to receive it."^ But
in England, and in nearly all of the United States, it is provided
by statute that an action may be maintained by the personal
representatives of the deceased, for the benefit of the widow
and next of kin, or for the benefit of the estate of the deceased,
for damages resulting from death caused by the wrongful act
of another. The English statute, 9 and 10 Vict. chap. 93, sees.
1, 2, (1846) known as Lord Campbell's Act, was the one from
which nearly all the later statutes have been substantially copied.
Prior to that statute, a plaintiff declared that the defendant as-
saulted and beat the former's wife, and thus injured her so that
she subsequently died, and the court held that, as in the case of
a person who beats another's servant so that he dies of the bat-
tery, the master shall not have an action against the offender
for the battery and loss of service, because the servant, dying
of the extremity of the battery, it has become a public offense ;
and, being converted into a felony, that drowns the particular
offense and private wrong offered to the master before, and his
action is thereby lost.^ The doctrine in Massachusetts and
Kentucky has been extended, in the absence of statute, to deaths
from the negligence of railroad companies,^ where the deaths
^ Shearman v. Western Stage Co. 24 Iowa, 543; Ford v. Monroe, 20 Wend. 210;
Boston &c. V, Dana, 1 Gray, 83; Drew v. Company, 26 N. T. 49; Donaldson v
Company, IS Iowa, 280.
* Sullivan t7. Company, U. S. C. Ct. Neb. 1874; 1 Cent. L. J. 595, 614, 622; Jones
V. Perry, 2 Esp. 482; Cross v. Guthray, 2 Root, 90; 2 Cent. L. J. 12, 4(7, 117, 165,
622,723.
s Hlgycins v. Batcher, Yel. 89; Koy, 18; Smith v. Sykes, Freem. 224. But see
White V. Spettigae, 13 Mees & W. 603. See Baker v. Bolton, 1 Camp. 493;
Shields o. Yonge, 15 Ga. 349; Hyatt v, Adams, 16 Mich. 180; Kickerson v. Har-
riman, 38 Me. 277.
* Skinner v. Housatonic By. Corp. 1 Cush. 475. See Osbom v. Gillett, Law R.
8 Ex. S8; Eden v. Company, 14 B. Mon. 204.
D. A. I.— 8.
34 PEBSONi^L INJURIES. § 27
were immediate. In most of the States, and in England, the
rule is, as we have said, now altered by statute.^
These statutes have no extra-territorial operation, and do not
apply where the suit is brought in one State for an injury done
in another State, or in a foreign country, or on the high seas;
and no recovery can be had in such cases, unless it is alleged
and proved that the law of the place where the tort was com-
mitted is the same in this respect as the law of the forum.^
In general, the principles relating to mutual or contributory
negligence are applicable to actions for injuries resulting in
death ; so that no action can be maintained where the negligence
of the party injured or killed materially contributes to the in-
jury or death ; * or where the death occurs in consequence of
the negligence of a fellow-servant while engaged in the same
employment.*
§ 27. Assault. — Acts which may embarrass and distress do
not necessarily amount to an assault. Indignities may not con-
stitute an assault. Acts aggravating an assault differ materially
from the assault thereby aggravated. Insulting language or
conduct may aggravate an assault, but it is not an assault. So
the acts of a defendant in taking out the windows of his own
house, in a bleak and cold day, might distress one unlawfully
occupying and illegally refusing to quit his premises, but they
can in no sense be regarded as an assault. One may be embar-
J See Green v. Hudson River R. R. Co. 2 Keyes, 294. The theory was, to some
extent, based upon the maxim actio personalis fTwritur cum persona ; and alao,
upon the principle that, in the case of immediate deaths, "there was no time,
during the life of the injured party, when it could be said that others had lost
any services by reason of the act complained of." Worley v. R. R. 1 Handy, 481.
See, also, Conn. Co. v. N. Y. Co. 25 Conn. 271; Campbell v, Rogers, 2 Handy, 110;
Hubgh. V. Company, 6 La. An. 496; Kearney v. Company, 9 Cush. 109; Hollen-
beck t'. Company, 9 Cush. 480; Quin v. Moore, 15 K. Y. 436; Wyatt v. Williams,
43 N. H. 105; Pack i7. Mayor, 3 N. Y 489; Palfrey v. Company, 4 Allen, 56. See,
contra, Whitford v. Company, 23 N. Y. 475 ; Plummer v, Webb, Ware, 78 ; Mercer
V. Jackson, 54 111. 397; Lynch v. Davis, 12 How. Pr. 324.
2 Whitford t;. Company, 23 N. Y. 465; Maher v. Norwich Company, 45 Barb.
226; Selma Company v. Lacy, 43 Ga. 461; Nashville Company r. Elkin, 6Cold.
582.
» Willetts V. Company, 14 Barb. 585; Pennsylvania Company v. Ogier, 35 Pa.
60; North Pa. R. Company r. Robinson, 44 La. 175; Tucker v. Chaplin, 2 Car. &
K. 730.
* Hutchinson r. Company, 5 Ex. 343; Wigmore i'. Jay, 5 Ex. 354; Field on
Damages, chap. 10, sees. 185, 650.
§ 27 INJURIES TO BEL ATI VE RIGHTS. 35
rassed and distressed by acts done in a wanton, willful, angry,
or . insulting manner, where there is no intention or existing
ability to do violence to the person, and yet there may be no
assault.^ Such ah injury regarded^in view of the law as to
assaults is damnum absque injuria.
So, in an action for trespass by a husband and wife, who were
tenants, the writ contained three counts : one for breaking and
entering the plaintiffs' close, and carrying away the household
furniture ; the second for taking and carrying away the house-
hold furniture of the wife, and the third for assault on the wife.
In reference to the last count .there was evidence tending to
show that after entry and notice to leave, and refusal by the
wife and her mother, with an expressed determination on their
part to hold possession against the defendant, the latter called
in assistants and ordered them to remove the furniture, and
they did remove it from some of the rooms ; that upon going to
one of the rooms the door was fastened and the assistants opened
it ; that the furniture, except the bed, was removed from the
wife's sleeping apartment ; that the assistants remained there
for some days and nights ; that the defendant caused the win-
dows to be removed, prevented food from being carried to the
house, let a tenant into the L of the house, who had charge of
the defendant's blood-hound, and permitted him to go into the
house ; that the furniture was removed into a house near by and
the wife notified of its whereabouts ; that the doors fastened by
the wife were removed, and that she finally left by compulsion
with an oflicer, and was ^ck several weeks. The following in-
structions were given by the lower court : " Was there a tres-
pass committed upon the female plaintiff? She is the only one
who seeks for damages. Whatever may have been the injury
inflicted upon the other inmates of that house, she can recover
on this suit only for that which was inflicted upon her. In order
to constitute an assault it is not necessary that the person should
be touched, but there should be certain indignities. In the lan-
guage of one of the decisions, if the plaintiff was embarrassed
and distressed by the acts of the defendant, it would amount in
law to an assault." But this instruction was held by the Su-
preme Court of Maine to be equally at variance with the com-
^ Stearns r. Sanipson, 59 Me. 568. See, also, Meader r. Stone, 7 Met. 147.
86 PERSONAL INJURIES. § 27
mon law and the statute of the State.^ The removal of the door
or windows of the owner in possession was held not to constitute
an assault. '' Indeed," said the court, ^^ as has been seen, (6
Allen, 76) the owner would, in attempting it, nave the right to
use as much force as was necessary to overcome the resistance
of the unlawfully resisting and trespassing tenant." ^
A defendant was riding his horse in the street, when the
plaintiff ran from the pavement and seized the bridle. The
defendant told him to '*' loose hold," and on his not doing so,
struck him on the face and head with his riding whip, bringing
blood. The plaintiff still retained his hold. The defendant was
considered justified in endeavoring to obtain his release, using:
no more violence than was necessary for that purpose, and the
most natural way of doing so, said the court, was by striking at
the person detaining him. ^'That he used no more violence
than was necessary for the purpose of extricating himself, ap-
pears from the fact that with all that he used he did not succeed
in doing so." *
A declaration set forth that the defendants assaulted and beat,
and pushed about the plaintiff and took from him certain goods,
but the substance of the justification was that the plaintiff, hav-
ing the goods wrongfully in his possession, they belonging to
the defendants, and being about to carry them away, the de-
fendants requested him to refrain, and on his refusal, moUiter
manus imposuit^ and used no more force than was necessary to
take the goods from him. The court decided that if the
defendant was the owner of the chattel >«md entitled to the pos-
session of it, and the plaintiff wrongfully detained it from him
after request, the defendant in law would have the possession,
and the plaintiff's wrongful detention against the request of the
defendant would be no possession, but would be the same viola-
tion of the right of property as the taking of the chattel out of
the actual possession of the owner. Both as to land and chattels
it was considered that the owner may wrest the possession from
a wrong-doer and trespasser.*
^ Rev. Stat. Me. chap. 118, sec. 28.
3 Cases cited supra.
« Rowe V. Hawkins, 1 Fost. & F. 91.
4 Blades v. Higgs, 30 Law J. Com. P. 347; 12 Com. B. N. S. 603; Baldwin v.
Hayden, 6 Conn. 453; Oyre v. Culver, 47 Barb. 592; Hodgeden v. Hubbard, 18
§ 28 INJURIES TO RELATIVE RIGHTS. 37
§ 2& Assaults in self-defense, etc. — ^If an assault is in
self-defense, and the plaintiff was the aggressor, or if one strikes
another, and the person struck, in the heat of anger, and on the
impulse of the moment, returns the blow with a stick or blud-
geon, an action cannot be maintained by the aggressor ; ^ but
unnecessary blows after the danger is past, and inflicted by way
of revenge, are not excused by a first attack. It is common law
that an assault and battery may also be justified in defense of
property, real or personal, by the person entitled to the posses-
sion or use. If one enters the house of another with force and
violence, the party rightfully in possession may turn him out
without previously requesting him to depart ; but if he entered
quietly, a previous request is necessary to justify violence. As
much force as may be necessary may be used.^ A policeman
may, also, by authority of the master of the house, turn out an
intruder, although not compelled so to do.^ A landlord may
eject disorderly guests, using no more than necessary violence.^
Under the same restriction, a person witnessing an affray may
lay hands on the combatants for the purpose of stopping it, and
preserving the peace.'^ When a person is assaulted in such a
way as to endanger his life, he is justified in maiming and
w^ounding the attacking party ; but there must be some reason-
able proportion between the attack and the retaliation. It seems
that if A should merely strike B a slight and not dangerous
blow, B would not be justified in cutting off A's hand ; but may-
hem may be justified where it is inflicted after several blows
have been struck, and the parties are engaged in close conflict.^
Vt. 904. See, contra, Andre v. Johnson, 6 Blackf. 375; Davis v. Whitridfl^e, 2
Strob. 232; Barnes t;. Martin, 15 Wis. 240.
I Oakes r. Wood, 3 Mees. & W. 150; Regina v. Driscoll, Car. & M. 214; Dole v.
Srskine, 36 N. H. 503; Adams v. Waggonel, 33 Ind. 531; Fisher v. Bridges, 4
Blatchf. 518; PhUbrick t;. Foster, 4 Ind. 442; Cockroft v. Smith, 11 Mod. 43.
< Jackson v. Ooortenay, 8 El. & B. 8; 27 Law J. Q. B. 37; Harrington v. People,
6 Barb. 607; Weaver v. Bmsh, 8 T. R. 78; Roberts i;. Taylor, 1 Com. B. 147; Scrib-
ner t;. Beach, 4 Denio, 448; Timothy t*. Simpson, 6 Car. & P. 500; M'llvoy v.
Cockran, 2 Marsh. 274; Robinson v. Hawkins, 4 Mon. 136.
» Wheeler r. Whiting, 9 Car. & P. 265.
« Howell V. Jackson, 6 Car. & P. 725; Webster v. Watts, 11 Q. B. 311; 17 Law
J. Q B. 73; Hannah v. Bust, 21 Wend. 149.
* Timothy o. Simpson, mpra,
* Cook V. Beal, 1 lA. Raym. 177; 3 Salk. 115; Cockroft v. Smith, 2 Salk. 642; 11
Mod. 43; Gregory v. Hill, 8 T. R. 299; Oakes v. Wood, 2 Mees. & W. 791. See
Collins r. Renison, Say. 138.
38 PERSONAL INJURIES. §§ 29-31
§ 29. Defense of relatives, friends, etc. — If an assault
was committed in defense of neighbors and friends, the defend-
ant may justify under a plea that the plaintiff first made the
assault on the child, relative, wife, husband, servant, neighbor,
or friend of the defendant, and was continuing the assault,
whereupon the defendant laid his hands on the plaintiff to
defend, etc., and prevent further assault, etc.^
§ 30. Moderate correction by parents, etc. — Children
under age are subject to reasonable and moderate correction by
parents, masters, and school-teachers.^ Masters of ships may
also inflict necessary punishment on their crew. A plea that
the defendant at the time of the assault was the captain of a
merchant vessel, and the plaintiff was a mariner on board of
her, serving under defendant's orders — that the plaintiff con-
ducted himself in a mutinous and disorderly manner, and re-
fused to obey the lawful and necessary commands of the defend-
ant, whereupon the defendant caused the plaintiff to be moder-
ately and properly corrected and flogged, has been held a good
plea in justification.^
§ 31. Injuries to licensees. — In the case of licensees, if
the injury arise by reason of a defective condition of the occu-
pant's premises, it is necessary, to the latter's liability to the
licensee, that the occupant had notice of the defect before the
damage was sustained.* ^ defendant was proprietor of a hotel
containing in one of the passage-ways a glass door, the glass in
which had become gradually loosened and insecure; but the de-
fendant was not aware of the fact, nor was he in fault for not
knowing it. The glass fell out as the plaintiff opened the door,
and the plaintiff, a visitor merely, was injured. The defendant
was held not liable.^ In the case of a customer, if he is injured
1 Leward v. Basely, 1 Ld. Kaym. 62; 1 Salk. 407; 3 Salk. 46. See Hill v. Rogers.
2 Clarke, 67.
2 Winterburn v. Brooks, 2 Car. & K. 16; Penn v. Ward, 2 Cromp. M. & R. 338;
Fitzgerald r. Korthcote, 4 Fost. & F. 656. See Cooper v. McJunkin, 4 Ind. 290.
8 Lamb v. Burnett, 1 Cromp. & J. 296. See Brown v. Howard, 14 Johns. 119;
Sampson v. Smith, 15 Mass. 365. But see Mathews v. Terry, 10 Conn. 455. So
with disorderly passengers— Aid worth v. Stewart, 4 Fost. & F. 957.
* Welfare v. Company, Law R. 4 Q. B. 693 ; Southcote r. Stanley, 1 Hurl. &
N. 247.
• Southcote V, Stanley, supra.
§ 32 INJURIES TO RELATIVE RIGHTS. 39
by reason of the bad condition of a portion of the premises not
open to the public, and no invitation or inducement has been
held out to him by the owner or occupant to go there, he can-
not recover for injury sustained there, though the place be fre-
quented by the servants of the occupant.^
§ 32. Injuries to workmen — Liability of employers. —
The general rule as to the liability of employers is as follows :
A servant by entering into his master's service assumes all the
neks of that service which the master cannot control, including
those arising from the negligence of his fellow-servants. In case
of an injury to one servant by the negligence of another, it is
immaterial whether he who causes and he who sustains the in-
jury are or not engaged in the same or similar labor, or in posi-
tions of equal grade or authority. If they are acting together
under one master in carrying out a common object, they are
fellow-servants. The master is bound to use ordinarv care in
providing suitable structures, engines, tools, and apparatus, and
in selecting proper servants, and is liable to other servants in
the same employment if they are injured by his own neglect of
duty. But it makes no difference whether the master is an indi-
vidual or a corporation ; in either case, he is responsible to his
servants for his own negligence, but not for that of their fellow-
servants.^ The negligence of the latter is as against the master
at the suit of his servant, damnum absque injuria,
iTolbisch r. TarbeU, 10 Allen, 385.
^GUman t;. Eastern B. B. Co. 10 Allen, (Mass.) 233; Caldwell v. Brown, 63
Penn. St. 453; Hall v. Johnson, 34 Law J. Ex. 222; Smith on Master and Serv-
ant, 134; Morgan v. Co. 35 Law J. Q, B. 23. See, also, Kielly v. Belcher Silver
Mining Co. 3 Sawy. C. C. 500; Knaresborough v. Belcher M. Co. Ibid. 446.
The damages to be recovered in case of death by negligence are the pecuniary
loss sustained by the parties entitled to maintain the action. (Penn. P. B. Co.
V. Zebe, 9 Casey, 330; Same v. Vandever, 12 Casey, 298; Same v. Henderson, 51
Penn. St. 315; Caldwell v. Brown, 53 Penn. St. 315.) See, generally, Copp v.
Newark & N. Y. B. B. Co. 6 Vroom, N. J. 17 ; Solomon v. Vintners' Co. 7 Amer.
Law Beg. 622.
In an action against an iron company by one of its workmen, employed in
blasting, for an injury occasioned by the premature discharge of a blast loaded
with a newly -invented powder, it appeared that the company furnished the
powder for use in its ordinary and appropriate business; that its superintendent
directed its use by the plaintiff in such business; that it had never been tested
as an explosive in blasting, and was, in fact, unfit and unsafe for such use, and'
that the plaintiff was ignorant of its dangerous properties. These things were
40 PERSONAL INJURIES. § 33
In California, under the codes, an employer is not bound to
indemnify his employee for losses suffered by the latter in con-
sequence of the ordinary risk of the business in which he is em-
ployed, nor in consequence of the negligence of another person
employed by the same employer in the same general business,
unless he has neglected to use ordinary care in the selection of the
culpable employee.^ To such cases the rule of respondeat super-
ior does not apply, unless there has been want of ordinary care
upon the part of defendant in the selection of the culpable em-
ployee. The code recognizes no distinction growing out of the
grades of employment of the respective employees, nor does it give
any effect to the circumstance that the fellow-servant, through
whose negligence the injury came, was the superior of the plaintiff
in the general service in which they were in common engaged.
So wh^rc a plaintiff was in the hydraulic department of a
general mining business, and a foreman of the defendant com-
pany was engaged in blasting, and the finding was that the fore-
man was a skillful, competent, and proper person to perform the
duties with which he was charged, the company was held not
liable to the plaintiff for injuries caused by blasting.^
§ 33. Injuries to trespassexB on premiBOS. — It is no
ground of recovery, that a man's premises were in a danger-
ous state of disorder, whatever the consequences to the tres-
passer. But the defendant has no right, even against a tres-
passer, to bring dangerous animals or engines upon his land,
unless properly secured.^ Still, if the trespasser had actual or
constructive notice of the presence of the dangerous thing, or
perhaps, if he enters in the night, or even daytime, w^ith a felo-
nious intent, he would not be entitled to recover.* And if it
were customary to keep a savage dog upon the premises, a per-
son entering, not feloniously, but without permit, might be
deemed to have notice.^
held to constitnte a cause of action. (Spelman v. Fisher Iron Co. 56 Barb. 151.
See Wright v, N. Y. Central R. R. Co. 25 N. Y. 562.)
1 Civ. Code Cal. sec. 1970.
s McLean t;. Blue Point Gravel Mining Co. 51 Cal. 255.
• Loomifl V. Terry, 17 Wend. 496; May v. Burdett, 9 Q. B. 101; Woolf 17.
Chalker, 31 Conn. 121.
* Bird v. Holbrook, 4 Bing. 628.
^Ilott V. Wilkes, 3 Bam. & Aid. SOS.
§ 34 INJURIES TO RELATIVE RIGHTS. 41
§ 34. Injuries inflicted by masters of ships npon their
crews. — ^The right of the master to use force and personal vio-
lence to quell an insurrection, or to exact obedience to orders
or to regular duty, can never be questioned. Without such
power every crew would be in a state of anarchy, and the lives
and property of all concerned in continual jeopardy. In sub-
duing an insurrection or mutiny, any force requisite may be
used, and any weapon which the occasion may require, because
in such case the master acts on the defensive, and is bound by
his duty, at all hazards, to reduce the crew to order and disci-
pline. Where the offense is of a nature to require punishment,
but not immediate violence, it is not only lawful but may be ex-
pedient to postpone the punishment, and then, if corporal punish-
ment is deemed proper, no deadly weapon should be used. For
the very circumstance that the master has the power to punish,
shows that neither he nor the vessel is in immediate danger ;
and therefore care should be taken to avoid such blows as may
put the life of the offender at hazard. Confinement, even in
irons, may sometimes b'e resorted to as the best mode of pun-
ishment ; but the master is not restricted to this, for, having au-
thority to correct, he may adopt the mode most likely to pre-
vent others from following a bad example.^ It has been said
that tying up and whipping, which is often resorted to, is igno-
minious, and ought not to be allowed. But it may be sometimes
necessary. The injury, however, must necessarily take place
in the presence of many witnesses, most of whom, from sympa-
thy and fellowship, will be usually ready to vindicate the cause
of the sufferer, and the consequences of the law are, therefore,
more likely to overtake the officer for abusing his authority. If
restrictions and limits shall be previously appointed to the au-
thority of the master or the mode of exercising it, great danger
will arise to the officers of the ship, who, being always the
smallest party, may be exposed to hazards which will render
the sea-faring life, so essential to the world, too formidable for
any to encounter. It has been argued that to permit the use
of personal violence by way of punishment, after an offense
has been committed, is to encourage vindictiveness and malice
1 Abbot on Shipping, p. 2, chap. 4, sec. 4.
42 PERSONAL INJURIES. § 34
on the part of the master. But, on the other hand, to forbid
any punishment except at the very instant that the offense is
committed, might be attended with consequences at least a§ se-
rious, for it will then be inflicted in the heat of blood and with-
out choice perhaps as to the mode, so that life would often be
put at hazard. Cas^s of personal violence and injuries, there-
fore, which are not so outrageous as to amount to an abuse of
authority on the part of the officers, must be regarded in the
light of damnum absque injuria^ for which the sufferer can
maintain no action. The only security which can be obtained
is, amenability to the law if the master transfjresses due bounds.
If it should appear that the intervening time has been used to
inflame instead of moderating passion, and that the punishment
was finally inflicted, either in kind or degree, to gratify a ma-
licious or vindictive disposition rather than to subdue the temper
of the offending party or to deter others, retributive justice
should apportion the penalty and the damages to the malignity
of the motives. These principles may be undisputed if we
recollect that the safety of lives depends upon unrestricted au-
thority upon the part of the commander in all cases of emer-
gency. In the meantime, the laws, although suspended, have
not lost their force, and the application of them, when the mar-
iners have returned within their protection, will usually guard
them from or compensate them in some degree for an abuse of
power.^
m
^Sampson r. Smith, 15 Mass. 365; Aertscu r. Ship Aurora, Bee Adm. 161;
Michaelson v. Deuison, 3 Day C. C. 294; Saunders v. Buckup, Bl. & Howl. 261;
Forbes r. Parsons, Crabbe C. C. 283; Cushman v. Ryan, 1 Story, 91; Brown t^.
Howard, 14 Johns. 119; Benton r. Whitney, Crabbe C. C. 417; Schelter v. York,
Crabbe C. C. 449; Flemming i\ Ball, 1 Bay, 3; Auberry f. James, 1 Vent. 70;
Watson V. Christie, 2 B. & P. 224; 1-Amb v. Burnett, 1 C. & J. 291. The master
ha& the sole and exclusive command in the navifj^ation and management of the
vessel. He may enforce discipline, and may use force when occasion requires,
and may resort to weapons; but they must be proper weapons. He may use
a deadly weapon when necessary to suppress a mutiny, but only when mutiny-
exists or is threatened. The master may also restrain, or even confine a pas.sea-
ger who refuses to submit to the necessary discipline of the ship; but should
confer with the other olBcers and enter the facts in the log-book. (Desty*s Ship-
ping and Admiralty, §§ 128, 129, citing Butler v. McLellan, 1 Ware, 219; Jay
r. Almy, 1 Wood. & M. 268; The Elizabeth Frith, Blatchf. & H. 195; Grant v.
Bailey, 12 Mod. 440; The Maria, 1 Pet Adm. 180; The Nimrod, 1 Ware, 18;
Wilkes V. Dinsman, 7 How. 128; Fuller v. Colby, 3 Wood. & M. 6; Gould v.
Christianson, Blatchf. & H. 521; Rice r. The Polly and Kitty, 2 Pet. Adm. 420;
§§ 35-6 INJURIES TO RELATIVE RIGHTS. 43
§ 35. Injuries from animals. — It is a well-settled principle,
that in all cases where an action of trespass or case is brought
for mischief done to the person or personal property of another,
by animals mansuetce naturoR^ such as horses, oxen, cows, sheep,
swine, etc., the owner must be shown to have had notice of their
viciousness before he can be charged ; because such animals are
not by nature fierce or dangerous, and such notice must be al-
leged in the declaration; but as to animals yeroe naturoe^ such as
lions, tigers, and the like, the keeper is liable without notice for
any damage they may do, on the ground that by nature such
animals are fierce and dangerous.^ But where the animals are
committing a trespass upon the close of another when doing
the damage, the owner of even tame or domestic animals may
be responsible, whether he has notice of their propensities or
not.2
Where injuries are committed by animals, but not according
to their nature, contra naturam^ the owner is not liable, if he
had no notice of the propensity. If the defendant's horse kicks
the plaintiff, neither plaintiff nor defendant being at fault, and
the defendant having no notice of a propensity of the horse to
kick, the defendant is not liable, since it is not natural for all
horses, nor for most horses, to kick people, unless provoked to
the act.^ It is also a rule that the injured person's right of re-
dress will 4be defeated if the injury was caused by his own fault.
A person who irritates an animal and is bitten or kicked in turn,
cannot recover; but the fault of the injured party must have a
necessary and natural connection with the injury.*
§ 36. Seduction and criminal conversation. — At com-
mon law no action could be maintained by the female who had
been seduced against her seducer for the seduction, she being
in pari delicto. It was damnum absque injuria as to her. Nor
was there a direct remedy by the parent, guardian, or master
The FalledO) 3 Ware, 321; Boberts v. Eldridge, 1 Sprague, 54; and many other
cases.)
1 9 Bac. Abr. tit. Trespass, i, 505; Jenkins v. Turner, 1 Ld. Raym. 109; Hinck-
ley V. Emerson, 4 Gowen, 351 ; Mason v. KeeUng, and Rex v. Huggins, 2 Ld.
Raym. 1583.
« 3 Blackst. Com. 211; Dolph v. Ferris, 7 Watts & S. 367.
« Cox r. Burbridge, 13 Com. B. N. S. 430.
* Loomis V, Terry, 17 Wend. 496.
44 PERSONAL INJURIES. § 36
for the injury. Such persons, or a husband even, could only
maintain the action when the relation of master and servant ex-
isted, either actually or constructively, between the plaintiff and
the female seduced, and this at the time of the seduction. The
loss of services, per quod servitium amisit^ was the foundation
of the action. If there was no loss of service, there could be no
recovery.^ But statutes of several States have given the right
of action to the female.
Where the husband connives, colludes at, or suffers his wife's
seduction, he has no remedy at law against the seducer ; and if
the plaintiff, by connivance, co-operates to produce the seduction
of a daughter, it is a defense.^ In such a case, the plaintiff is
in pari delicto.
The rules of the common law in reference to seduction, and
especially as applied to actions by parents for the seduction of
their daughters, presented frequent cases of extreme hardship,
and frequent illustrations of the doctrine of damnum absque in-
juria in its harshest aspect. If the daughter was of age, and
not in the actual service of the parent when the seduction took
place, the parent had no redress at law. The action was founded
on the fiction of loss of service. The technical relation of mas-
ter and servant must have subsisted. If she was under age,
however, she was presumed to be under the control and protec-
tion of the parent, so as to entitle the latter to bring the action.^
The hardships of the ancient law have been very generally rem-
edied by modern statutes. But a few illustrations will now be
given to show the condition of the common law, which was not
considered to be a very creditable one, even by the judges who
felt called upon to administer it.
An action of trespass vi et armis was brought for an assault
upon the plaintiff's daughter, and getting her with child, and
1 3 Blackst. Com. 140; Grinnell v. WeUs, 7 Man. & Q. 1033; Ellingtbn v. EUing-
ton, 47 Miss. 329; Gray r. Darlande, 51 N. Y. 424; Thompson v. Ross, 6 Hurl. &
K. 16; Boberts v. ConneUy, 14 Ala. 235.
2 Rea V, Tucker, 51 111. 110; Van Vacter «. McKlllip, 7 Blackf. 678; Pierce v.
Pierce, 3 Pick. 299; Smith v. AUison, Bull. N. P. 27; Travis v. Bur^^r, 34 Barb.
614; Fletcher v. Randell, Anth. 196.
8 Nickerson v. Stryker, 10 Johns. 115; Martin v. Payne, 9 Johns. 3S7; Patter-
son V. Thompson, 24 Ark. 55; Mercer v. Walmesley, 5 Har. & J. 27; Millar v.
Thompson, 1 Wend. 447; Greorge v. Van Horn, 9 Barb. 523; Phipps v. Garland, 3
Dev. & B. 44; McDaniel t;. Edwards^ 7 Ired. 406; Lee v. Hodges, 13 Gratt. 726.
§ 36 INJURIES TO RELATIVE RIGHTS. 45
the declaration concluded with a pefn quod sei'vitium amisit The
facte, as agreed upon, were that the plaintiff's daughter, being
twenty-three years of age, hired herself to one S as a servant,
and w€ftit to hire with him, and served him for some time. Dur-
ing her service she was gotten with child by another party, the
defendant, and being therefore unable to perform her service as
she was used and ought to do, she was discharged by S, her
master, who paid her her wages in proportion to the service she
had already done him ; and the plaintiff, her father, received
her when no one else would, and lodged and boarded her in his
house. She was there delivered of a child, and the plaintiff
maintained her during her lying-in at his own expense. The
question was whether the plaintiff could maintain the action.
As the parties were poor, the court proposed a compromise,
which was accepted. It was, that all proceedings be stayed with-
out costs on either side. The reporter understood that the court
were of the opinion that the case could not be maintained.^
The defendant's argument, which we may suppose met with the
approbation of the court, was substantially as follows : The
foundation of actions of this kind has been loss of service. The
father's interest in the child, whatever it migl\t have been dur-
ing infancy, ceases at the child's coming to the age of twenty-
one. (This was in England, in 1766.) Many injuries may be
done to a child which are not the subjects of actions by the
father. An action will not lie by the father for debauching his
daughter.^ If the father maintains the daughter in his own
house, he is entitled to her service, and may maintain an action
for the loss of her service. But here she was hired out to serv-
ice in another man's house. It is not stated that she was unable
to maintain herself. If she had been under age, and under her
father's roof, the case would be different. The foundation of
such a suit must be loss of service, and where a declaration
stated that the defendant, contriving and maliciously intending
to oppress, injure, and impoverish the plaintiff, unlawfully and
injuriously seduced, debauched, and carnally knew the plaintiff's
daughter, and got her with child, whereby she became sick and
^ Postletbwaite v. Parkes, 3 Burr. 1S78. See, also, Dean v. Peel, 5 East, 45 ; Carr
V. Clarke, 2 Chit. 260.
'Russel V. Come, 2 Baym. 1032.
46 PERSONAL INJUKIE8. § S6
ill, and afterwards was delivered of the child so begot by the
defendant, by means of which sickness and dielivery the daugh-
ter was for a long time unable to work or maintain herself,
and the plaintiff, being of sufficient ability in that behatf, was
obliged to maintain her, and therein necessarily laid out and
expended a large sum of money, and underwent great trouble,
fatigue, and anxiety, the court held that the defendant was en-
titled to judgment, and no action could be maintained. Lord
Mansfield said that, ^^ after looking into the cases, the court
found that there was no precedent of such an action unless
upon a quod servitium amisit The case of Russel v. Corne ^ is
in point. This is an action brought by a third person for the
incontinence of two people, both of whom may possibly be of
age — at least, it does not appear that they are otherwise. We
are all of opinion that this action cannot be maintained.'^ ^ A
declaration stated that the daughter of the plaintiff, being a
minor and unmarried, had become and was with the assent of
her father a domestic servant of the defendant for certain
agreed wages, and with the intention on the part of the plaintiff
and his daughter that she should return to her father whenever
she quitted the defendant's service, unless she should immediately
proceed to the service of some other person than the defendant
or the plaintiff. It then averred that at the time of the griev-
ance, the daughter was able and accustomed, and but for the
committing of the grievance would have continued to do and
perform domestic services, and by means thereof to support her-
self without assistance from her father while she was in the
domestic service of another person, and to render great assist-
ance to her father while living with him. It then alleged the
seduction of the daughter by the defendant ; that she became
pregnant, and returned to her father's house ; and that, by rea-
son of the seduction, she became unable to maintain herself, and
thereby the plaintiff was charged with her support and medical
expenses, and deprived of the benefit of her services. But the
objection was taken that there was no allegation that the
daughter was, at the time of her seduction, in the service of
1 2 Raym. 1081.
2 Satterthwaite r. Dewhurst, 4 Doug. 315; Harris v. Butler, 2 Mees. & W. 539;
Grinnell v. Wells, 7 Man. Sc G. 1033. But see Hunt r. Wotton, T. Raym. 269
§ 36 INJURIES TO RELATIVE RIGHTS. 47
the plaintiff. Parke, B., said that the girl was in the actual .
service of another person, and her intention was not to return
at any definite time to her father's house. That an action for
seduction would not lie under such circumstances he considered
clear. ^' In order to sustain this action, there must be damnum
et injuria. The plaintiff not having shown any right to the
services of his daughter at the time of the seduction, there
is here damnum absque injuria. A mere temporary absence un-
doubtedly would not be sufficient to defeat the action, but that
is very different from a continued and regular service." ^ And in
another case Tindal, C. J., observed that ^^ the foundation of
the action by a father to recover damages against the wrong-
doer for the seduction of his daughter has been uniformly
placed, from the earliest time hitherto, not upon the seduction
itself, which is the wrongful act of the defendant, but upon
the loss of service of the daughter, in which service he is
supposed to have a legal right or interest." ^ In a case
in Pennsylvania, the seduction took place during the life-
time of the father, but he died without bringing suit, and the
mother then brought the action. The daughter, who was above
the age of twenty-one years when the injury was done, resided
with her father, and had the direction of his household affairs
until his death, when she resided with her mother, who became
the head of the family, and at whose house she was delivered of
a child, and was never in good health afterwards. She remained
with her mother, by whom both she and her child were sup-
ported, until she died. The loss of service was again invoked
as the foundation of the action. Whatever damage the mother
might sustain arose, as the court considered, from the act com-
mitted in the father's lifetime. The daughter was his servant.
When her mother became, on the husband's death, the mistress
of the house, the mischief had been done. If the alleged tres-
pass gave the mother no cause of action, it was held that the
consequences of it would not. When the trespass was com-
mitted the daughter was the servant of another. It was held to
^ Blaymire v. Haley, 6 Mees. & W. 55.
^ Eager r. Grimwood, 1 Exch. 61; Grinnell t'. Wells, 7 Man. & G. 1033; Davies
r. Williams, 10 Q. B. 726; Thompson t\ Ross, 5 Hurl. & N. 16; Manley v. Field, 7
Com. B. N. S. 96; Hedges r. Tagg, 7 Excb. 283.
48 PERSONAL INJURIES. § 36
be damnum absque injuria.^ In New York a plaintiff brought
an action for the seduction of his step-daughter, and the court
held it not maintainable on the ground that there was no tie of
blood between the plaintiff and the girl ; that the seduction was
before she had returned to his home, after service elsewhere,
and that neither owed any obligation to the other. There was
no ground, as in the case of a natural parent, for implying the
relation of master and servant. A recovery under these circum-
stances was held to be clearly wrong in point of principle, and
erroneous in point of law.^ If the loss of health be caused by
mental suffering, not the consequence of the seduction, but pro-
duced by intervening causes, the loss of service is not in contem-
plation of law the proper consequence of the defendant's act.
If the defendant seduces the plaintiff's minor daughter, and sub-
sequently abandons her, in consequence of which abandonment
she suffers such distress of mind as to bring illness upon her,
and incapacitate her for performing services for the plaintiff, no
pregnancy or disease resulting as a direct consequence of the
seduction, the plaintiff cannot maintain his action.^ As to the
carelessness of the parent of a daughter, this may defeat his
recovery, as where a father allowed the defendant to visit his
daughter after notice that he was a married man and a libertine ;
the defendant, on inquiry by the plaintiff as to this, representing
that his wife was an abandoned woman, and that he would soon
obtain a divorce from her and marry the plaintiff's daughter.
The plaintiff is not entitled to recover for the daughter's seduc-
tion.^ The right of action for seducing and debauching a man's
wife, and for the enticement and harboring of her, rest upon the
same ground — the loss of consortium — ^including affection, soci-
ety, and aid, and arises without regard to pecuniary damage.^
So that upon separation by articles of agreement the husband,
having voluntarily parted with the consortium of his wife, he
^ Logan V. Mnrray, 6 Serg. & B. 175; Heinrichs v. Kerchner, 35 Mo. STS.
« Hartley j), Rlchtmyer, 4 N. Y. 38; Roberts v. Connelly, 14 Ala. 236; Dain v.
Wycoff, 7 N. Y. 191; Sonth v. Denniston, 2 Watts, 474. See Leipe v. Eisenlerd,
32 N. Y. 229, 729; Fernster v. Moyer, 3 Watts & S. 416. See, contra, Ellington v.
Ellington, 47 Miss. 329; Ingersoll v. Jones, 5 Barb. 661; Yaughan t*. Rhodes, 2
McC. 227.
3 Abrahams v. Kidney, 104 Mass. 222; Boyle v. Brandon, 13 Mees. & W. 738.
* Reddie v. Scoolt, Peake, 240.
6 Wilson V. Webster, 7 Car. & P. 198.
§§ 37-8 INJURIES TO RELATIVE RIGHTS. 49
cannot maintain an action against one for criminal conversation
-with her.^ But if the separation was without any relinquish-
ment of the husband's right to the society of his wife, the case
would be difEerent, as where he supports her under his own roof,
and the defendant seduces her.^ If the husband is accessory to
his own dishonor, and consents to it, he cannot recover.^
§ 37. Criminal conversation. — In an action of criminal
conversation with the plaintiff's wife, it appeared that the
plaintiff and his wife had agreed to live separately. Subse-
quent to their separation the plaintiff proved several acts of
adultery committed by the defendant, but there was no direct
proof of any act of adultery before the separation, though it
appeared that in a conversation concerning the separation, the
plaintiff had alleged in the presence of the defendant several
instances of gross indecency between the latter and the wife.
But Lord Kenyon being of opinion that the gist of the action
was the loss of the comfort and society of the wife, which was
alleged in the declaration in the usual form, and that there was
no evidence of the act of adultery till after the plaintiff and his
wife were separated, and that proof of the 'act afterwards would
not support that allegation, nonsuited the plaintiff.^
§ 38. Connivance of the plaintiff. — In trespass for crim-
inal conversation and actions for loss of service, the connivance
and consent of the plaintiff to acts of adulterj^, even with others
than defendant, is a defense. A defendant proved that the
plaintiff, the husband, had, before his separation from his wife,
voluntarily permitted other men to have criminal connections
with her, and Lord Kenyon said that it was not to be endured
that a man should suffer and encourage his wife to live in a
state of prostitution, and ,then come into a court of juAice and
ask for damages. His having suffered such connection with
other men was equally a bar to the action as if he had permitted
1 Harvey v, Watson, 7 Man. & G. 644; TTeedon v. Timbrell, 5 Term Kep. 367;
Chambers v. Caulfield, 6 East, 244; Winter v. Henn, 4 Car. & P. 494; Wilton u.
Webster, 7 Car. & P. 198.
« Barber v. Armstead, 10 Ired. 630; Chambers v. Caulfield, 6 East, 244.
* 2 Greenl. Ev. sees. 61, 66.
* Weedon v. TimbreU, 5 T. R. 357. See 3 Wils. 319.
D. A. I.-
50 PERSONAL INJURIES. § 39
the present defendant to be connected with her, for 8uch a hus-
band could have none of that social affection for his wife, the
loss of which was the ground of the action, per qtiod consortium
amisit^ And the same judge, in an action by a father for the se-
duction of his daughter, held that however reprehensible the con-
duct of the defendant might be and the unfortunate girl seduced
entitled to pity, still it must be recollected that the father was
the plaintiff on the record, and if he had misconducted himself
.the action could not be maintained. It appeared that he had
been guilty of gross misconduct in suffering the defendant to
continue his visits, knowing him to be a married man and hav-
ing received a caution that he was a libertine, and having al-
lowed his daughter to go alone with the defendant to the thea-
ter, in consequence of which was the accident which gave rise
to the action.^ The plaintiff was nonsuited.
§ 39. Infidelity of the hnsband — ^Neglect of his wife.
Lord Kenyon has held that a husband cannot come into court
and ask for damages, or complain of the loss of the society of
his wife, when he has never courted, enjoyed, or desired that
society or consortium. So in an action for criminal conversa-
tion with plaintiff's wife, the adultery of the latter with the
defendant was proven. But the open and notorious infidelity of
the husband was also proven, and also a total neglect of his
wife's society. The husband had publicly appeared with a
woman of loose principles as his mistress, and had taken a
house for still another, and had notoriously kept her as a mis-
tress. The plaintiff was nonsuited.^ But Lord Alvanley, in a
subsequent and somewhat similar case, held that the misconduct
of the husband did not defeat the action, but only went in miti-
gation of damages.*
•
1 Hodges V. Windham, Peake, 39; Sanborn v. Neilson, 4 N. H. 601 ; Ilea v.
Tucker, 61 111. 110.
2 Beddie v. Scoolt, Peake, 240. See, also, to same effect, Akerley v. Haines, 2
Caines, 292; Duberley v. Guning, 4 T. R. 651; Vossel r. Cole, 10 Mo. 636; Seagar
V. Sligerland, 2 Caines, 219; Travis r. Barger, 24 Barb. 614; Graham v. Smith, 1
Edm. Sel. Cas. 267; Verholf v. Van Honwenlengen, 21 Iowa, 429; Smith v. Mas-
ten, 15 Wend. 270.
8 Wyndham r. Wycombe, 4 Eap. 16.
* Bromley v. Wallace, 4 Esp. 27. See, also, Rea v. Tucker, 51 111. 110; Sanborn
V. Neilson, 4 N. H. 501.
§ 40 INJURIES TO LIBERTY OF PERSON. 51
CHAPTER m.
INJURIES TO THE LIBERTY OF THE PERSON.
§ 40. False imprisonment.
§ 41. What does not constitate imprisonment.
§ 42. Lawful arrests.
§ 43. Justifiable detentions.
§ 44. Imprisonment by commanders of vessels.
§ 40. False imprisonment. — It may generally be shown,
in defense of an action for false imprisonment, that a warrant of
arrest or mittimus from a competent court or magistrate, hav-
ing jurisdiction of the offense, and v^iid on its face, has been
issued. It is usually a justification' of and protection to an offi-
cer, in making an arrest, and imprisoning the party, according
to the terms of the process. So a ministerial officer is protected
in the execution of process valid on its face, issued by a court
or magistrate having jurisdiction of the subject-matter to which
it relates.^ In Oregon, it has been held that a private person
may justify an arrest for felony by a mere preponderance of
evidence thafr the accused had been guilty of a felony, and may
justify the firing of a gun upon the accused by evidence that
it was necessary in making the arrest.^ Threats made to an
officer by a brother of the plaintiff after the arrest have been
held admissible for the purpose of justifying the officer in put-
ting the plaintiff in irons.^ Where there was evidence that the
plaintiff, who was arrested by a police officer, on information
that he had committed a felony, resisted and continued to resist *
while being conveyed to the station-house, and threatened that
he would murder the defendant, or any one who attempted to
arrest him, these facts were considered admissible as affecting
^McLean v. Cook, 23 Wis. 364; Shaw v. Davis, 55 Barb. 389; Underwood v.
Robinson, 106 Mass. 296.
3 Lander r. Miles, 3 Oreg. 35. See Teagarden v. Graham, 31 Ind. 422.
» Cochran v. Toher, 14 Minn. 385.
%
62 INJURIES TO LIBERTY OF PERSON. § 41
the question of the propriety of the force exerted upon the
plaintiff by the defendant.^
§ 41. What does not constitate imprisonment — In
general, if one man compels another to stay in any given place
against his will, he imprisons that other just as much as if he
locks him up in a room. It is not necessary to constitute an
imprisonment that a man's person should be touched. Compel-
ling a man to go in a given direction against his will, may also
amount to an imprisonment. But if one man merely obstructs
the passage of another in a given direction, whether by threat
of personal violence or otherwise, leaving him at liberty to go
in another direction, or stay where he is, this does not amount
to an imprisonment. He does him wrong if there be a right to
pass in that direction, and may be liable in case for obstructing
the way, or for assault if in persisting to go forward he touches
the person of the other,* or threatens him so as to amount to an
assault. But imprisonment' is a total restraint of the liberty of
the person, for however short a time, and not a partial obstruc-
tion of his will, however inconvenient. False imprisonment at
common law is a restraint on the liberty of the person, without
lawful cause, either by confinement in prison, stocks, house, etc.,
or even by forcibly detaining the party in the streets against his
will.^ But it appears that the restraint must be complete for
the time being, however short. If there is a mode of escape,
without danger to the person, or at least without serious incon-
Tcnience, it will not be imprisonment if the party does Aot
tjhoose to avail himself of it, and of course not if he does. This
doctrine was declared in an English case,^ although Lord Chief
Justice Denman strongly dissented from it, asking, with much
force, "As long as I am prevented from doing what I have a
right to do, of what importance is it that I am permitted to do
something else ? How does the imposition of an unlawful con-
dition show that I am not restrained? If I am locked in a
room, am I not imprisoned, because I might effect my es-
cape through a window, or because I might find an exit danger-
i Fulton V. Staats, 41 N. Y. 498.
^Selwyn's Nisi Prius, title, Imprisonment; 3 Blackst. Com. 127.
« Bird V. Jones, 7 Q. B. 742. See Hawk v. Ridgway, 33 111. 473.
§ 41 INJURIES TO LIBERTY OF PERSON. 68
oas or Inconvenient to myself, as by wading through water, or
by taking a route so circuitous that my necessary affairs should
suffer by delay?" The case, which is interesting, was where
a part of a bridge, which was ordinarily used for a public
footway, was appropriated for seats to view a regatta on the
river, and separated for that purpose from the carriage-way by
a temporary fence. The plaintiff insisted on passing along the
part so appropriated, and attempted to climb over the fence.
The defendant, who was clerk of the bridge company, seized
his coat and tried to pull him back. The plaintiff, however,
succeeded in climbing over the fence. The defendant then sta-
tioned two policemen to prevent and they did prevent the plaint-
iff from proceeding forward along the footway; but he was
told he might go back into the carriage-way and proceed to the
other side of the bridge, if he pleased. This the plaintiff re-
fused to do, but remained where he was over half an hour, and
then, on the defendant still refusing to let him go forward along
the footway, he attempted to force his way, and in so doing he
assaulted the defendant, and was taken into custody. The case
was reduced to the question whether what passed before the as-
sault by the plaintiff was or was not an imprisonment in point
of law, and a majority of the English Court of Queen's Bench
(Lord Denman, C. J., dissenting) held that it was not.
The detention must be against the will of the party, and not
voluntary, even in its inception. If one voluntarily place him-
self in a situation where another may lawfully do that which
has the effect of restraining liberty — especially if he refuse to
depart when he may — he cannot complain that he is unlawfully^
imprisoned against his will. So where a sheriff's officer went
on board a vessel to serve a writ on one of the passengers. The
destination of the boat was known ; the accustomed hour of de~
parture was passed; the boat was in the act of getting under
way ; at that moment the plaintiff chose to go on board to arrest
a person on a process ; and, seeing the boat leaving the wharf,
chose to remain. After the boat had proceeded some distance
into the stream, the captain (the defendant) proposed to the
plaintiff to send him ashore with his prisoner, if he could take
him, otherwise to send him alone. The plaintiff refused to go
unless the defendant would aid him in carrying the prisoner
54 INJURIES TO LIBERTY OF PERSON. § 42
This the defendant would not do, and was not bound to do. He,
however, oflEered no obstacles to the arrest. The person to be
arrested resisted ; the passengers would not lend their aid ; the
officer could not manage the man alone. On the refusal of the
plaintiff to go ashore alone, the captain proceeded on his voyage.
At some distance out of the port, and near the mouth of the
harbor, the plaintiff demanded to be put ashore ; but the de-
fendant then refused, and here commenced the detention against
the will of the plaintiff. The plaintiff lost business in the way
of serving writs to about the amount of fifty dollars, and was
required to pay as passage money about as much more, and was
gone two weeks. He brought suit for false imprisonment. But
the detention was held voluntary in its inception, and lawful
afterward ; and a new trial was granted after a verdict in plaint-
iff's favor in the court below.^
§ 42. Lawful arrests. — Bestraint of the person is lawful
whenever expressly commanded by due authority of law, and
whenever impliedly commanded or authorized by law. Where
a person has been arrested by an officer of the law under a war-
rant issued from a competent judicial tribunal, the arrest is just-
ifiable, though the writ was erroneously issued, since it was
under a mandate which the officer had no right to disobey. An
arrest made under a void writ will usually render an officer lia-
ble to an action of false imprisonment, but the writ must be
absolutely void, not merely voidable. If it be merely voidable,
or if void, the fact does not appear on the face of the writ, the
latter is a protection to the arresting officer.^ In other words, a
ministerial officer is protected in the execution of process, though
the court have not in fact authority, provided that on the face
of the process it appear that the court has jurisdiction of the
subject-matter, and nothing appears therein from which the
officer can assume that the court has not authority.^ As if an
1 Moses V. Dubois, Dud. (S. Car.) 209. See Spoor v. Spooner, 12 Met. 281.
2 Deyo V. Van Valkenburgh, 5 Hill. 242.
' Savacool t;. Bough ton, 5 Wend. 170.
The same principle which protects a ministerial officer who executes the pro-
cess of a court of general jurisdiction seems to protect him when he executes
tlie process of a court of limited jurisdiction, if the subject-matter of the suit is
within that jurisdiction, and nothing appears on the face of the process to show
§ 43 INJURIES TO LIBERTY OF PERSON. 65
officer should arrest a member of the legislature, privileged at
the time from arrest, the writ not indicating the f act.^ An arrest
without warrant may be made by an officer of the law, qualified
to* make arrests, upon "suspicion of felony." If the officer can
show that, although no felony was in fact committed, yet he had
reasonable grounds for believing that a felony had been com-
mitted, he is justified.^ The circumstances, however, must fully
warrant the belief.^ In an old case in the Year Book 6 Henry
VII, (folio 6, placitum 12, about A. d. 1490) a plaintiff counted
in trespass that the defendant, with force and arms, assaulted
the plaintiff and wounded him, and imprisoned him for the space
of a day, etc. And the defendant justified the wounding be-
cause the plaintiff assaulted him the same time, and the tort that
he had was of his own wrong, and in his defense ; and as to the
imprisonment, he said that he was constable in the vill, and be-
cause the plaintiff assaulted him, and broke the peace, he took
him and carried him to jail to preserve the peace, and this was
held a good plea by the whole court, notwithstanding he was the
person upon whom the plaintiff would have broken the peace.*
And in another case, a few years later, tlie court said it was
lawful for a constable to take suspected persons who went about
by night and slept by day, or who kept suspicious company.^
§ 43. Justifiable detentions. — Where a plaintiff was about
to commit a felony by killing his wife, certain persons not offi-
cers entered the house and confined the plaintiff in a room until
he could be handed over to the authorities, and this imprison-
that the person was not also within it. It may safely be asserted that wlien an
inferior court ha^ not jurisdiction of the person of the defendant, all its pro-
ceedings are absolutely void. Neither the members of the court nor the plaintiff,
if he procured or assented to the proceedings, can derive any authority or pro-
tection from them, when prosecuted by a party aggrieved ; but if a mere min-
isterial officer executes any process upon the face of which it appears that the
court which issued it had jurisdiction over the person, and the court had juris-
diction of the subject-matter, he is protected, (^vacool v. Broughton, 5 Wend.
170; Willes, 32; Lewis v. Palmer, 6 Wend. 367; Sheldon v. Van Buskirk, 2
Comst. 473; Chegary r. Jenkins, 5 N. Y. 376; Kerr r. Mount, 28 N. Y. 659; For-*
ter p. Purdy, 29 N. Y. 106; Paton r. Westervelt, 2 Duer, 362.)
1 Tarlton v. Fisher, 2 Doug. 671 ; Chase v. Fish, 16 Me. 132.
2 Rohan v. Sa\^in, 6 Cush. 281.
Hogg V. Ward, 3 Hurl. & N. 417.
* See, also, Chune r. Pyot, 1 Rolle R. 237 ; Levy v. Edwards, 1 Car. & P. 40. .
« Anon. Year Book, 13 Henry VII, fol. 10, pi. 10.
56 INJURIES TO LIBERTY OF PERSON. § 44
ment was held justifiable under the circumstances.^ So, where
a constable had just ground for believing that the plaintiff either
had committed, or was about to commit, a felony, he detained
him till he could be brought before a justice and have his con-
. duct investigated, and was justified.^ Whether there was rea-
sonable cause for suspecting that a felony had been committed,
or that plaintiff was about to commit one, seems formerly to
have been a question for the jury.^ Now, by the weight of
modern authority, it appears to be a question of law for the
court.*
§ 44. Imprisonment by commanders of vessels. — A
captain of a ship has the absolute command over the passen-
gers and crew. The passengers as well as the crew are to obey
all the captain's reasonable orders in an emergency, even to work
the ship when necessary. If a passenger misconducts himself at
table, the* captain may remove him, or may even imprison him
for a short period, if that be necessary to enforce his lawful
commands. The power, however, is limited to the necessity of
the case.*
1 Handcock v. Baker, 2 Boa. & P. 260.
2 Beckwith v. .Philby, 6 Bam. & C. 635. See Timothy v. Simpson, 1 Cromp.
M. &R. 757.
» Ibid, and Nicholson r. Hardwick, 5 Car. & P. 495; Allen t\ Wright, S Car. &
P. 526; Isaacs v. Brand, 2 Stark. 167; Cowles v. Dunbar, 2 Car. & P. 567;'Kohan
v, Sawin, 5 Cush. 281.
* Kindred v. Stitt, 51 111. 401; Bums v. Erben, 40 N. Y. 463; Spencer v. Anuess,
3 Vroom, 100; Hawley v, Butler, 54 Barb. 490; Perryman v. Lister, L. R. 3 Ex.
197: Cochran v. Toher, 14 Minn. 385; Lawrence v. Hedger, 3 Taunt. 14; Mure t\
Kaye, 4 Taunt. 34; Coupey v. Henley, 2 Esp. 640; Broughton v. Jackson, 18 Q.
B. 383: Davis r. Russell, 5 Bing. 354. .
6 King V. Franklin, 1 Fost. & F. 360.
§ 46 INJURIES TO HEALTH. 67
CHAPTER IV.
INJURIES TO HEALTH— NUISANCES.
§ 45. Personal discomfort.
§ 46. Mental distress.
§ 47. Obstruction of lights.
§ 48. Nuisances authorized by Act of the Legislature.
§ 49. Exercise of statutory powers.
§ 50. Trustees and Commissioners of Public Works.
§ 45. Personal discomfort. — There is a distinction drawn
in all the books between actions brought for nuisances upon the
ground that the thing alleged to be a nuisance is productive of
material injury to his property, and those where the nuisance is
productive of personal discomfort. It very often appears that
the cases give a man's comfort, or even his health, a secondary
consideration. With regard to personal inconvenience, or inter-
ference with one's enjoyment, quiet, personal freedom, or any-
thing that discomposes or injuriously affects the senses, or the
nerves : whether that may or may not be denominated a nuisance
depends greatly on the circumstances of the place where the
thing complained of actually occurs. If a man lives in a town,
he must often subject himself to the consequences of those oper-
ations of trade which may be carried on in his immediate locality,
which are actually necessary for trade and commerce, and also
for the enjoyment of property, and for the benefit of the inhab-
itants of the town, and of the public at large. If a man lives
in a street where there are numerous shops, and a shop is open
next door to him, and is carried on in a fair and reasonable way,
he cannot complain because, to himself individually, there may
arise much personal discomfort from the trade carried on in
that shop. But if there is a material injury to property, the
law is very different. A man's health might be destroyed by
reason of the discomfort, and he would have no redress ; his
only remedy might be to move away. But if his fruit trees
were destroyed by reason of noxious vapors, for instance, from
58 INJURIES TO HEALTH. § 45
t
adjacent smelting works, this would present a very different
question. The submission which is required from persons liv-
ing in society to that amount of discomfort which may arise
from the legitimate and free exercise of the trade of their neigh-
bors, does not always apply to circumstances the immediate re-
sult of which is sensible injury to the value of property. In
countries where great works are erected and carried on, persons
may not stand on their extreme rights, and bring actions in re-
spect of every matter of annoyance ; otherwise, the business of
the whole country might be seriously interfered with. And
even in actions for nuisance to property arising from noxious
vapors, the injury, to be actionable, must be such as to visibly
diminish the value of the property, and the comfort and enjoy-
ment of it. All the circumstances, including those of time and
locality, are to be considered.^ The trade, to be excusable,
must be in a convenient and proper place.^ So far as personal
enjoyment is concerned, no action can be maintainable for such
odors or vapors proceeding from a neighbor's premises as are
merely disagreeable, at least when they are the necessary effect
of a business properly conducted there.^ The noxious gases
must produce some important physical effect, or some sensible
effect upon physical comfort. One may not expect to have
air as fresh and pure after as before a certain business has
been commenced in his vicinity,'* if it be not absolutely incom-
patible with physical comfort. We are speaking now of private
nuisances. If the nuisance is one not affecting physical comfort
according to plain and simple modes of life, (not dainty or
elegant habits of living) an action is not usually maintainable.^
The^ main question is considered to be whether the annoyance is
such as materially to interfere with the ordinary comfort of
human existence, and probably of ordinary and not fashionable
or dainty human existence.^
1 St. Helen's Smelting Co. u. Tipping, 11 H. L. Cas. 642 ; S. C. in Ex. 4 Best &
Smith, 608, 616.
2 Hole u. Barlow, 4 Com. B. N. S. 334 ; Rich v. Basterfleld, 4 Com. B. 783. See
Bamford v. Turnley, 3 Best & Smith, 62 ; King v. Morris, 3 C. E. Green, 397.
8 St. Helen's Smelting Co. v. Tipping, 11 H. L. Cas. 642. •
* Walter v. Selfe, 4 De Gex & S. 315.
6 Ibid. Also, Columbus Gas Co. v. Freeland, 12 Ohio St. 392 ; Owen r.^Her-
man, 1 Watts & S. 548 ; Crump v. Lambert, Law R. 3 Eq. 409.
6 Crump t'. Lambert, Law R, 3 Eq. 409 ; Ball v. Ray, Law R. 8 Ch. 467 : Spar-
§ 46 INJURIES TO HEALTH. 59
•A
§ 46. Mental distress. — ^The cases wherein nuisances, con-
sidered as to the efEect they produce upon the mind, have been
the subject of discussion, present some curious, if not ludicrous
features. In a Pennsylvania case, the plaintiffs endeavored to
enjoin the owners of a horse railroad from running their street
cars on Sunday, and this on the ground that they were thus de-
prived of enjoying the Sabbath as a day of rest and religious
exercise. The bill was dismissed, on the ground that religious
meditation and devotional exercises resulted from sentiments not
universal, bein^ peculiar to individuals, and the injury by dis-
turbance not tc"be measured by any standard applicable to the
privation of ordinary comfort. " It must," said the court, " be
something about the effects of which all agree ; otherwise that
which might be no nuisance to the majority might be claimed
to deteriorate property by particular persons. Noises which
disturb sleep, bodily rest — a physical necessity — noxious gases,
sickening smells, corrupted waters, and the like, usually affect
the mass of the community in one and the same way, and may
be testified to by all possessed of their natural senses, and can
be judged of by their probable effect on health and comfort;
and in this way damages may be perceived and estimated. Not
so of that which onlv affects thouorht or meditation." ^ In an-
other case one church member broufjht an action ao^ainst a
brother member for disturbing: him during religious services in
church by making loud noises in singing, reading, and talking.
"In the first place," said the court, "the injury alleged is not
the ground of an action. He (the plaintiff) claims no right in
the building, or any pew in it, which has been invaded. There
is no damage to his property, health, reputation, or person. He
is disturbed in listening to a sermon by noises. Could an action
be brought by every person whose mind or feelings were dis-
turbed in listening to a discourse or any other mental exercise
(and it must be the same, whether in a church or elsewhere) by
the noises, voluntary or involuntary, of others, the field of litiga-
hawk V. Company, 64 Pa. 401 ; Mulligan v. Elias, 12 Abb. Pr. N. S. 259; Cleve-
land t'. Company, 5 C. E. Green, 201 : Aldricli v. Howard, 8 R. I. 246 ; Babcock
r. Company, 5 C. E. Green, 21)0 ; Cooper v. Randall, 53 111. 24 ; Meigs t-. Lister, 8
C. E. Green, 199 ; Emery r. Lowell, 109 Mass. 191 ; Illinois Company r. Grabill,
50 lll."241 ; Pay r. VV^hitman, 100 Mass. 7(5 ; Francis ).-. Schoelkoph, 53 N. Y. 152.
1 Sparhawk r. Company, 54 Pa. 401.
R^.^^fv
.,#
60 INJURIES TO HEALTH. § 47
tion would be extended beyond endurance. The injury, more-
over, is not of a temporal nature ; it is altogether of a spiritual
character, for which no action at law lies." ^
In these cases the religious devotees, in the first instance, and
the brother church member in the second, were equally the un-
fortunate victims of the doctrine of damnum absque injuria.
§ 47. Obstruction of lights. — The owner of a house has a
right to as many windows as he may see fit to have in his house,
notwithstanding he may thus destroy the privacy of his neigh-
bor. The opening of the windows is not actionable, and the
neighbor's remedy is by obstructing the windows by structures
on his own land, and this he may lawfully do, and in either case
it is damnum absque injuria if they are not ancient lights, and
the neighbor has not acquired a right by grant, occupation, and
acquiescence. The motive for creating the obstruction appears
immaterial.^ Even the old English doctrine as to ancient lights
has been greatly modified in the United States. So, it is held
that a person may legally erect a building on his own land, im-
mediately adjoining the land of another, and put out windows
overlooking the latter's, and although he use them for twenty
years he will have no redress. And no action is held to lie
against the owner of city land for erecting a wall thereupon
which obstructs the access of light and air, as it has uninter-
ruptedly existed for twenty years, to windows in the cellar and
lower story in a building, ten feet within the boundary line of
the plaintiff, unless the windows are thereby substantially de-
prived of light.^ Shaw, C. J., remarks : " The general rule of
the common law, before it was regulated by statute, seems to
have been that uninterrupted enjoyment of air laterally through
and over the land of another, and enjoyed a length of time,
created an easement which could not be disturbed, like that of
a right of way, or aqueduct, or drain in and over the land of
another ; though these are distinct in their nature, consisting in
1 Owen V. Henman, 1 Watts & S. 548 ; First Baptist Church v. Company, 5
Barb. 79. See, also, State v. Linkhan, 69 N. C. 214.
2 Rogers v. Sawin, 10 Gray, 379; Mahan v. Brown, 13 Wend. 261; Thurston v.
Hancock, 12 Mass. 220; Pickard v. Collins, 23 Barb, 444.
8 Fifty Associates v. Tudor, 6 Gray, 259; Pierre v. Femald, 26 Me. 436; Parker
t?. Foote, 19 Wend. 309; Cherry r. Stein, 11 Md. 1.
§ 47 INJURIES TO HEALTH. 61
actual uee and qualified right of occupation in and upon the real
property of another, and where such occupation is open and visi-
ble, and manifestly adverse. But even this general law of Eng-
land was somewhat modified in regard to the densely packed
tenements of the largest city of the kingdom, by the custom of
London. In manv of the States of the Union," it has been held
^^ that the enjoyment of light and air in a messuage or building,
received through windows laterally over the vacant territory or
lower building of an adjoining proprietor, gives to the owner of
such building no right to the continuance of such enjoyment.
We think the rule is well settled that in a city tenement an ease-
ment of light and air derived from use and enjoyment, or im-
plied grant, can only extend to a reasonable distance, so as to
give to the tenement entitled to it such an amount of air and
light as is reasonably necessary to the comfortable and useful
occupation of the tenement for the purposes of habitation or
business ; not the amount which, under some circumstances, '
would be agreeable and pleasant, nor the full amount which the
tenement has been accustomed to receive, but the amount rea-
sonably necessary. The distance will be determined by a just
regard to usage, to the habit and mode of building at the place,
a just regard to the rights of ownership of real estate, and gen-
erally the circumstances of the case. In cities closely built, and
crowded with inhabitants, the limits must be obviously narrower
than in rural districts. The question of reasonableness is a
mixed one of fact and law ; and where all the facts and circum-
stances appear, it is a question of law ; but in practice it is a
question to be passed upon by the jury, under the direction of
the court, in matters of law.^ In Vermont, it has been held that
long continued use of light for the windows of one's building,
standing on or near the line of his land, raises no presumption
of a grant from the adjoining owner, and no action lies in favor of
the former against tte latter for obstructing the light by an erec-
tion upon his own premises.^ In Pennsylvania, substantially the
same ground has been taken, and so in Iowa and New Jersey.^
1 Fifty Associates v. Tudor, 6 Gray, 259.
a Hubbard v. Town, 33 Vt. 296. See, also, Carrig r. Dee, 14 Gray, 583; Rogers
V. Sawln, 10 Gray, 376; Richardson t?. Bond, 15 Gray, 387.
3 Haveretick v. Sipe, 33 Pa. 368; Morrison v. Marquardt, 24 Iowa. 35; King v.
Miller, 4 Halst. Ch. 659. See Myers r. Gamel, 10 Barb. 537.
62 NUISANCES. §§ 48-9
§ 48. Nuisances authorized by act of legislature. —
Generally, that which is authorized by the legislature cannot
be considered as a nuisance.^ But this rule does not apply to
abuses of corporate charters, nor the use of the charter for pur-
poses which it does not contemplate. Acts done for the public
benefit cannot, generally, be construed to be nuisances ; as build-
ing a bridge over a river — the bridge having a proper draw ;
taking away earth from a highway, and thereby lowering the
level below the established grade, and refusing to desist when
notified by the commissioners ; nor the mere erection of a build-
ing intended as a poor-house and work-house.-
§ 49. Exercise of statutory powers. — An action does not
He for injuries sustained from the due exercise of statutory pow-
ers, if these powers are exercised with judgment and caution,
and the authority given by the statute is not exceeded nor abused.
But it is otherwise if the powers are exceeded or not strictly
pursued, or the things authorized to be done are carelessly or
negligently done ; or if the act creating the damage is not a
lawful act.^ Where, therefore, the legislature authorized a
company to lay down a railway next to a public thoroughfare,
they were presumed to have considered the question that the
railway might be a nuisance to passengers, and to have decided
that such persons must submit to the inconvenience for the pub-
lic good.^ And where a company was authorized to lay down
a railway across a public thoroughfare, and have gates across
the high road to prevent persons from passing along the road at
times when it would be dangerous, on account of the trains be-
1 Trustees v. Utica, 6 Barb. 31.S; Hatch v. Vermont, 2 Wins. 142; Stoughton v.
State, 5 Wis. 291; Common wealtli v. Reed, 34 Pa. 275; Hinchman r. Patterson, 2
Green, 75; Samuels v. Mayor, 3 Sneed, 298; Delaware v. Commonwealth, GO Pa.
367; Williams v. New York, 18 Barb. 222. (But see S. C. 16 N. Y. 97.) Salton-
stall r. Banker, 8 Gray, 195; Mazetti v. New York, 3 E. D. Smith, 98; Hartwell
V. Armstrong, 19 Barb. 166; Hodgkinson v. Long Island, 4 £dw. Ch. 411; Parsons
t'. Travis, 1 Duer, 439.
2 Attorney-General v. Hudson, 1 Stockt. 526; Attorney-General r. Patterson,
1 Stockt. 624; State v. Peckard, 5 Harrington, 500.
8 Truro &c. Company r. Bradley, 3 Macn. & G. 341 ; Caledonian Company
V. Ogilvy. 2 Macq. 246; Bellinger r. R. R. 23 N. Y. 42; Brownlow v. Board, 31
Law J. Com. P. 140; RadclifEe's Executors r. Mayor, 4 N. Y. 195; Boulton v.
Crowther, 2 Bam. & C. 706; Duncan r. Findlater, 6 Clark & F. 908; Slatten t'.
Company, 29 Iowa, 154; Bex v. Board, 5 Best & Smith, 515; 6 Ibid. 562.
* Rex V. Pease, 4 Barn. & Adol. 42.
§ 50 NUISANCES. 63
ing near at hand, it was held that a person who had been de-
layed and impeded in his journey along the high road, by reason
of the necessary closing of the gates, had no remedy against
the company for the injury. And so where the owner of prop-
erty, near which a railroad is constructed, is incommoded or im-
peded in going to and from his house, his horses frightened and
rendered ungovernable by the noise of the trains, etc.^
§ 50. Trustees and commissionexB of public works,
having public duties to perform under statutory authority, are
not responsible for their acts so long as they keep themselves
within the statute and the strict line of their duties ; but they
are liable if they act in excess, or are guilty of negligence or
misconduct in doing what they are empowered to do. If the
injury is the inevitable result or necessary consequence of the
work they are authorized to do, the plaintiff has no action.^
When commissioners intrust the execution of public works to
contractors, engineers, and surveyors, who select their own work-
men for the execution of the work, the commissioners are not
personally liable for the mistakes and negligence of the latter,
unless they personally interfere in the conduct and management
of the work.^
1 Caledonian Company v. Ogilvy, 2 Macq. 229; Kellingerr. Company, 50 X. Y.
206. But see Reg v. Company, 94 Law J. Q. B. 191.
'^ Reg V. Longton Gas Company, 29 C. J. M. C. 118; Jones v. Bird, 6 Bam. &
Aid. 837 ; Clothier v. Webster, 12 Com. B. N. S. 790; Sutton v. Clarke, 6 Taunt. 42.
« Humfreys v. Mears, 1 Man. & R. 187 ; Duncan v. Fin41ater, 6 Clarke & F. 894.
64
INJURIES TO REPUTATION.
§ 61
CHAPTER V.
INJURIES TO REPUTATION — SLANDER AND LIBEL — MALICIOUS
PROSECUTION.
§ 51. Defamation.
§ 52. Slander.
§ 53. W^ords held not actionable.
§ 64. Actionable words qualified by other words.
§ 55. Charge of false swearing.
§ 56. Slander and libel— Publication.
§ 57. Insufficient publication.
§ 58. Words affecting trade, business, or occupation.
§ 59. The truth of the charge as a justification.
§ 60. Privileged communications, utterances, and publications.
§ 61. Extent of the privilege.
§ 62. Reports of trials.
§ 63. Privileged petitions.
§ 64. Communications in reference to proposed marriages.
§ 65. Privilege of counsel in argument.
§ 66. Lender control of the court.
§ 6t. Responsibility of counsel in argument.
§ 68. Publication of argument.
§ 69. Malicious prosecution.
§ 70. Malicious prosecution of civil actions.
§ 71. Defendant's proof.
§ 51. Defamation. — In that large *class of cases where the
words spoken or published are not actionable per se, of course,
the plaintiff is without remedy, unless some special damage can
be shown. This very often cannot be done, yet it cannot even
then be said that the plaintiff is uninjured, although he is vir-
tually without remedy. There may be injury to his feelings,^
and indirectly to his character, yet an injury incapable of esti-
mation in dollars and cents — incapable of absolute proof in the
way of special damage. The plaintiff, in such cases, may not be
able to show that he has lost a dollar by reason of the words
spoken or written concerning him, yet the indirect loss may be
very large. He may be avoided by people he knows nothing of,
and who, but for the words, might have brought him profitable
business, or been otherwise of great advantage to him, socially,
§§ 52-3 INJUBIE8 TO BEPUTATION. 66
politically, or in the course of business. Such cases, I think,
are properly cases of damnum absque injuria, I do not purpose
to go extensively into the law of slander and libel. The field is
already occupied. But, to illustrate the subject, a few instances
will be given.
§ 52. Slander. — Slander consists in uttering words to the
injury of a person's reputation: No such injury is done when
the words are uttered only to the person concerning whom they
are spoken, no one else being present or within hearing. It is
damage done to character in the opinion of others, and not in a
party's self-estimation, which constitutes the material element in
actions for slander. It must also be shown that the words were
spoken in the presence of some person who understood them.
If spoken in a foreign language, which no one present under-
stood, no action will lie.^
§ 53. l^ords held not actionable. — The words, '' Thou
hast stolen by the highway side " have been held not actionable,
on two grounds : first, that they might mean that the plaintiff
stole upon a man suddenly or unawares, without any wrong
intent ; or second, it might be contended that the words only
meant that he stole some unimportant article, such as a stick
under a hedge, which could scarcely be made the subject of lar-
ceny ; and this on the ground that when words may have a good
construction they must not be construed in an evil sense.^ The
words, ^' Thou art an arrant knave, for thou hast bought stolen
swine and a stolen cow, knowing them to be st.olen," have been
held not actionable ; for, in some cases, it is lawful to receive
stolen goods, as if a lord of a manor or his bailiff meets with a
suspicious person who has stolen goods, and stops the goods,
1 SheffiU V. Van Deusen, 13 Gray, 304; Edwards v. Wooten, 12 Go. 36; Hicks'
Case, Popham, 139; Hob. 216; Wheeler and Appleton's Case, Godb. 340; Anon.
Style, 70; Broderick v. James, 3 Daly, 481; Phillips v. Jansen, 2 Esp. 624; Lyle
V. Clason, 1 Gaines, 681; Force v, Warren, 16 Gom. B. N. S. 808; Desmond v.
Brown, 33 Iowa, 13.
^Brough r. Dennison, Goulds. 143, placitnm 68; Garle's Gase, Godb. 181. But
see Talbot v, Gase, Gro. Eliz. 823, 317; Web v. Poor, Gro. Eliz. 669; Johnson v.
Robertson, 8 Port. 486; Dudley v, Robertson, 2 Ired. 141; Davis v. Ockham,
Style, 246, 227; Banfleld v. Lincoln, Freem. 278; Wilner v. Hold, Gro. Gar. 489;
Bey nor r. Hallett, Poph. 187; Gro. Jac. 306; Gooper r. Smith, Gro. Jac. 423; But-
ton r. Hey ward, 8 Mod. 24.
D. A. L— 5.
66 INJURIES TO BEPUTATION. § 53
and the party confesses them to be stolen, and escapes.^ In an
old case in the King's Bench, in 1602, the plaintiff brought an
action on the case against the defendant, and the words were,
(the plaintiff) "did bum my bam " (innuendo, a barn with com)
" with his own hands, and none but he " ;. and after verdict it
was moved, in arrest of judgment, that the words were not
actionable, as it was not then felony to bum a bam if not par-
cel of a mansion house, nor full of corn. The words were held
to be received in mitiore sensu^ and the innuendo would not serve
when the words were not slanderous.^ To say to another,
" Thou hast forged my hand," or " Thou hast forged a writ-
ing," is not actionable, because the words are too uncertain and
general.^ The words, "Thou art a thief, for thou hast stolen
half an acre of my corn," have been held not actionable, be-
cause no one is presumed to know that it was com severed
which was meant, and the other act would be impossible. An
innuendo that it was com reaped and gathered into shocks did
not, as the court held, help the plaintiff.* The words, " Thou
hast killed my wife," were held not actionable while the plaintiff
had a wife living.^ But there are many cases to the contrary.®
^In re Dawson, Yely. 6; Steventon v. Hif^ins, 2 Eeb. 338; Greswell t*. Yen-
tryes, Style, 91. See Hollls v. Briscoe, Yelv. 64. See, contra, Briggs* Case, Godb.
157; Gamble v. Jenny, 2 Keb. 494; Alfred v. Farlow, 8 Q. B. 8M. Compare
Pridam v. Tucker, Noy, 133; Anon. Style, 392; Tabbe v, Matthews, 1 Bolst. 109;
King V. Lorking, 1 Bulst. 147.
3 Barham v, Netbersal, 4 Bep. 20a; Lovet v. Hawthorne, Cro. Eliz. 884: Bandy
*v. Hart, 46 Mo. 460; Bed way v. Gray, 31 Vt. 292. See cases where the words
were held not to impute the crime of arson — Brettun v. Anthony, 103 Mass. 37 ;
Tebbetts v. Groding, 9 Gray, 254; Jones v. Hungerford, 4 Gill & J. 402; Bloss t\
Toby, 2 Pick. 320; Sweetapple v, Jessie, 5 Bam. & Adol. 27; Bobinson v. Dram-
mond, 24 Ala. 174.
s Anon. 3 Leon. 231; Cassabilly v. Brit, 1 Sid. 16; PoweU v. Winde, Hob. 305,
327 ; Dabborne v, Martin, Poph. 177; Anon. Goulds. 25; Godsel v. , Winch, 90;
Mills V. Monday, 1 Lev. 112; Perkinson v. Bowman, Cro. Elis. 853; Thomas v,
Axworth, Hob. 2; Venard v. Woton, Cro. Eliz. 166; Aier v. Frost, 1 Boll. B. 431.
4 Castleman. t\ Hobbs, Cro. Eliz. 428; PoweU r. Hutchins, Cro. Jac. 204; Hall
V. Hammond, 1 Sid. 104; Harbert v. Angell, Hutt. 113; Anon. 2 BrownL 84;
Bynion v. Trotter, Style, 231; Cock v. Weatherby, 13 Miss. 333; Idol v. Jones, 2
Dey. 162; Ogden v. Biley, 2 Greene, 186. See, also, Dickey v. Androe, 32 Vt 55;
Eindlay v. Bear, 8 Serg. & B. 581; Alfele v. Wright, 17 Ohio St. 238; WaU v.
Hoskins, 5 Ired. 177; Williams v. Gardner, 1 Mees. & W. 245; Hoskins v. Tar-
rance, 5 Blackf . 417; Day v. Bobinson, 1 Ad. & E. 554; McCarthy v. Barrett, 12
Minn. 494.
^Snag V. Gee, 4 Bep. 16a; Jacob, v. Mills, Cro. Jac. 343; Boldroe v. Porter,
Yelv. 22; Snyder v. Degant, 4 Ind. 578. See Ayres v. CbviU, 18 Barb. 200.
•Billing V, Knight, 2 Bulst. 42; Phmips v, Kingston, 1 Vent. 117; Talbot t?.
§ 58 INJURIES TO REPUTATION. . 67
The words, ^^ He is a maintainer of thieves, and keepeth none
but thieves in his house^ and I will prove it," were held not
actionable, on the ground that the defendant did not say that
the plaintiff knew them to be thieves, and one may have thieves
in his house and not know them to be thieves, and then it is no
offense.^ So with the words, " Thou hast stolen my mare, or
consented to the stealing of her," because in the disjunctive,
and as to the last clause because he might be said to have con-
sented because he did not contradict it.^
In a somewhat startling case in 1607, in the King's Bench, an
action was brought for the following words : " Sir Thomas Holt
struck his cook on the head with a cleaver, and cleaved his
head ; the one part lay on the one shoulder, and another part on
the other." The defendant, in arrest of judgment, moved that
these words were not actionable, for it was not averred that the
cook was killed, and non constat; he might be living, and it
was then but trespass.® This theory was adopted by the court,
and the case was adjudged for the defendant. In an equally
curious case there was an action for these words : " Thy hus-
band was the death of J P ; and had it not been for thee and
thy husband, he had been alive unto this day." The Chief Jus-
tice said that the husband ^^ might be the occasion, yet not the
cause, of the death, as by sending the said J P on a journey,
by reason of which, etc. ; or by ousting him from his estate, so
that he occasionally languished ; or by means more trivial than
these."* In an action for these words: "Thou art a lewd fel-
low ; thou didst set upon me by the highway, and take my
purse from me ; and I will be sworn to it " — the error assigned
was that they did not charge a felony, nor with robbing him,
nor with taking his purse feloniously. It might be he took it
Case. Gro. Eliz. 823; Greene v. Warner, 3 Eeb. 624; Stallings v. Newman, 26 Ala.
300; Eckhart v. Wilson, 10 Serg. & R. 44; Ausman ^Yeal, 10 Ind. 3£^; Chambers
V. White, 2 Jones, (N. G.) 383; Case v. Buckley, 15 Wend. 327.
1 Ball 9. Bridges, Gro. Eliz. 746; Hall v. Hennesly, Gro. Eliz. 486.
'Griffith's Case, Cro. Eliz. 780; Stirley v. Hill, Gro. Gar. 283; Falkner v.
Cooper, Cart. 55. But see Harrison v. Thomborough, 10 Mod. 196.
s Holt 17. Astrigg, Cro. Jac. 184.
Qiuery — How would it have been had the charge been that the cook's head
was cleaved in the middle, so that " one part lay on the one shoulder, and
the other part on the other" ?
4 8kelton v. Earth, 2 Sid. 7L
»?*■•, '
68 INJURIES TO REPUTATION. § 68
in jest, or for some other cause ; ^^ and all the judges and
barons were of that opinion." ^ The words, " He* is in jail for
stealing a mare, and other beasts " are not actionable, for they
do not afHrm directly that the plaintiff stole the beasts, as if it
was said that he stole them, and was in jail for it ; but they only
make report of his imprisonment, and the supposed reason for
it.^ The words '^ Thou art as arrant a thief as any is in Eng-
land; for thou hast broken up J S's chest, and taken away
forty pounds " were held not actionable, because it was not
averred " that there was any thief in England," and the money
might have been taken away under pretense of title. The
" taking " might have been lawful.® The words " Thou hast
picked my pocket " have been held not actionable, if there was
no statement that it was feloniously done.^ An action does not,
in the absence of special damages, lie for slander, unless the
words carry the imputation of an offense punishable by corpo-
ral punishment, as distinguished from fines, etc., in a temporal
court. Imputations of breaches of municipal regulations are
not generally actionable per se,^ where at all events they are
only punishable by fine or imprisonment, as a consequence of
non-payment of fine. Many cases hold that the punishment
must be infamous.^
In case for saying ^^ Thou art a forsworn man, and didst take
a false oath against me before Justice Scawen ; " innuendo,
John Scawen, a justice of the peace, after verdict, judgment
was stayed, for the whole court held that it did not appear, ex-
cept by the innuendo, that Scawen was a justice of the peace,
1 Holland v. Stoner, Cro. Jac. 315 : Jjatbam v. Humphrey, Gro. Eliz. 890. But
Bee Lewis v. Cawardly, Cro. Jac. 312. See Lawrence v. Woodward, Cro. Car.
277 ; Gold v. Robbins, Yel. 145.
2 Steward v. Bishop, Hob. 177.
s Foster v. Browning, Cro. Jac. 688 ; Wittam*s Case, Noy , 116 ; Sparham v. Pye,
Cro. Jac. 530 ; Bush v. Smith, T. Jones, 157 ; Thompson v. Knott, Yel. 14A ;
Dacey v. Clinch, 1 Sid.' 53 ; Ifotcliffe v. Shubrey, Cro. Eliz. 224 ; Heake i\ Moul-
ton, Yel. 90.
^Poladtt t'. Mason, Hob. 306 ; Stent v. , Style, 127 ; Watts v. Rymer, 1 Vent.
213. See Russell v. Wilson, 7 B. Hon. 261. Anon. Freem. 277; Mason v. Thomp-
son, Hut. 38. See, corUra^ Bradshaw v. Walker, Hob. 249.
* McCabe v. Foot, 15 L. T. R. N. S. 115 ; Walden v. Mitchell, 2 Vent. 265 ; Bil-
lings V. Wing, 7 Vt. 439.
•Wilson t'. Tatum, 8 Jones (N. C.) 300 ; Wall ». Hoskins, 5 Lred. 177 ; Skinner
V. White, 1 Dev. & B. 471 ; Brady v. Wilson, 4 Hawks, 94 ; Shlpp v. McCraw, 3
Murph. 463.
f
§ 63 INJURIES TO REPUTATION. 69
and that was insufficient. Justice Scawen might have been the
Christian and surnames of a private individual not authorized
to administer an oath.^ In an action for slauder the words were
" He is a thief, for he has stolen my beer " : it appeared that
the defendant was a brewer, and that the plaintiff had lived
with him as servant, in the course of which service he had sold
beer to different customers of the defendant and received money
for the same which he had not duly accounted for. Lord Kenyon
directed the jury to consider whether these words were spoken
in reference to the money received and unaccounted for by the
plaintiff, or whether the defendant meant that the plaintiff had
actually stolen, beer, for if they referred to the money not ac-
counted for, that being a mere breach of contract, so far ex-
plained the word " thief " as to make it not actionable.^ Law-
rence, J., in Woolnoth v. Meadows,® remarked that many of the
old cases on slander went to a very absurd length, and that
many of them had been long set at rest. This was in 1803.
Some of the specimens already given may incline the reader to
agree with him. " Swearing to a He " does not necessarily im-
port that the party has, in judgment of law, perjured himself.
It may mean that he has sworn to a falsehood, without being
conscious at the time that it was a falsehood. To be actionable
the words must contain a charge of perjury in a clear, unequiv-
ocal manner, and admit of no uncertainty. The charge should
also state some court or competent officer before whom the
plaintiff swore. It might otherwise mean extra-judicial swear-
ing, and therefore it is held that a charge that one is forsworn
is not actionable, because it shall not be intended in a case
where perjury may be committed. On the other hand, a charge
that one is perjured is actionable, for that implies the direct
legal crime.*
iGurnetho. Derry, 3 Ley. 166; Rutliche's Case, 4 Coke, 17.
> Christie v. Cowell, Peake, 4.
SS East, 463.
^ Hopkins V. Beedle, 1 Gaines, 347, per Kent, J. ; Eimmis v. Stiles, 44 Vt. 351 ;
Fitzsimmons t*. Cutler, 1 Aik. 33; Carlock t\ Spencer, 7 Ark, 12; McGough v.
BfaodeB, 12 Ark. 625; Blair v. Sharp, Breese, 11; Small v. Clewley, 60 Me. 262;
Beswick v. Chappel, 8 B. Mon. 4S6; Martin t\ Mellon, 4 Bibb, 99; Roella v. Fol-
low, 7 Blackf. 377; Shiloab v. Ainmerman, 7 Ind. 347; Watson v. Hampton, 2
Bibb, 319; Sheely v, Bijj^, 2 Har. & J. 363; Palmer v. Hunter, S Mo. 512; Har-
ris V. Woody, 9 Mo. 113; McManus v. Jackson, 28 Mo. 56; Vauglian v. Havens,
70 INJURIES TO REPUTATION. § 54
§ 54. Actionable words qualified by other words. —
Words, otherwise actionable, may be so qualified by other or
additional words that they lose their actionable character. Thus
" J K is as damned a rascal as ever lived, and all who joined
his party and the procession of the 4th of July (meaning the
said J y R, plaintiff, and the party and procession in which
the said J K acted as captain on the said 4th day of July) are
a set of black-hearted highwaymen, robbers, and murderers.''
It appeared that on the day previous to the speaking of these
words there had been a public procession to a church ; that K
commanded an artillery company, which formed part of the pro-
cession, attended with music ; that a Mr. B claimed one of the
instruments of music, and went to the church to demand or take
it, but was refused, and it was retained by force ; that upon this
an affray ensued, in which Mr. B received a dangerous wound.
It was proved that the conversation in which the words were
used was understood by the witnesses to relate to the transac-
tions of the preceding day, and that the terms '^ highwaymen,
robbers, and murderers" were used in reference to the treat-
ment of Mr. B in withholding the instrument and stabbing him.
The court held that the words being clearly understood to apply
to the transactions of the preceding day, and .being known not
to amount to the charge which the words would otherwise im-
port, were not actionable.^
Where it was said, ^^ Thompson is a damned thief, and so was
his father before him, and I can prove it," but the words were
added, ^^ Thompson received the earnings of the ship, and ought
to pay the wages," and it appeared that the witness to whom
these words were addressed had been master of a ship belong-
ing to a person deceased who had left the defendant his execu-
tor, and at the time was applying to him ior payment of his
8 Johns. 109; Browne v. Dula, 3 Murph. 574; Jones v. Jones, 1 Jones (N. G.) 496;
Packer v. Spangler, 2 Binn. 60; Tipton v. Kahle, 3 Watts, 90; Barger v. Barger,
IS Pa. 489; Jones v. Marrs, 11 Humph. 214; Hogan v, Wilinoth, 16 Gratt. 80.
1 Van Rensselaer v. Dole, 1 Johns. Gas. 279. See, also, to same effect, Parmer
V. Anderson, 33 Ala. 78; WUliams v. Gawley, 18 Ala. 206; Wright o. Lindsay, 20
Ala. 428; Desmond v. Brown, .S3 Iowa, 18; Garmichael v. Shield, 21 Ind. 66; She-
cut V. McDowell, 3 Brev. 38; Ayers v, Orider, 15 III. 37; McGaleb v. Smith. 22
Iowa, 242; Brite v. Gill, 2 Mon. 65; 6 Mon. 130; Torbett v. Glare, 9 I. L. R. 86;
Dnnnell v, Fiske, 11 Met. 661; Norton v. Ladd, 6 N. H. 203; Quinn o. O'Gara, 2
£. D. Smith, 388; Perry v. Man, 1 R. I. 263.
§ 56 INJURIES TO REPUTATION. 71
wages : Lord Ellenborough directed a nonsuit, observing that
the word " thief " was used without any intention in the defend-
ant to impute felony to the plaintiff, which must appear to sup-
port the declaration.^
Where words otherwise actionable are understood by the wit-
nesses to amount only to a charge of trespass, they lose their
actionable character — as where the words were, " You are a
thief; you stole hoop -poles and saw -logs from off D & M's
land," and the witnesses supposed and the jury found that this
referred to cutting down standing timber and converting it, they
were held not actionable — otherwise, if the jury had determined
that the words referred to timber already cut.^
The old rule of construing words in mitiore sensu has been
said in Kentucky to have been exploded, and has given way to
that of construing them in that sense in which they would be
understood by those who hear and read them.^
§ 56. Charge of false swearing. — False swearing in a
cause, unless to some fact n^iterial to the issue, is not perjury,
and is not the subject of indictment or punishment; and as
slanderous words of this class are actionable in themselves only
when they impute a crime punishable by law, it follows that to
charge a man with false swearing simply is not actionable unless
reference is made at the time to testimony given, wherein the
crime of perjury might have been committed. Where the words
spoken do not necessarily import perjury, the plaintiff is bound
to show that he swore under such circumstances that he might
have been guilty of the crime had he sworn falsely. He must,
therefore, prove that the testimony alluded to by the defendant,
and charged as false, was material. The materiality of the tes-
timony is as essential an ingredient in the crime of perjury as
^Thompson v, Bernard, 1 Gamp. 4S. See, also, Smith i;. Carey, 3 Camp. 461;
Colbert v, Caldwell, 3 Grant, ISl; Allen v. Hillman, 12 Pick, 101; Robertson v.
Lea, 1 Stewt. 141; Abrams v. Smith, S Blackf. 95; Thompson v. Grimes, 5 Ind.
385; Hotchkiss v. Olmstead, 37 Ind. 74; Hawn v. Smith, 4 B. Mon. 385; Brown v.
Piner, 6 Bush, 518. See Upham v, Dickinson, 50 111. 97; Taylor v. Short, 40 Ind.
606.
3 Dexter v. Taber, 12 Johns. 239. See Burbank v. Horn, 39 Me. 286.. See, con-
tra, Guildeslew v. Ward, Cro. Eliz. 225.
' Jones V. McDowell, 4 Bibb, 188; Logan v. Steele, 1 Bibb, 594. See, also, Dixon
V. Stewart, 33 Iowa, 125 ; Mayson v. Sheppard, 12 Rich. 254.
72 SLANDER AND LIBEL. § 56
the legality of the oath itself. This doctrine is open, doubtless,
to objections. The same injury may be done to the character of
the accused by a charge of false swearing, or of perjury, when
perjury could not have been committed, as if it could ; and it
may produce the same or greater tendency to breach of the
peace, but the doctrine, independent of statute, is well settled,^
as it is also settled that any words imputing a crime in terms
may be so qualified and explained by concomitant circumstances
as to become neutralized.
§ 56. Slander and libel— Publication. — As publication is
the utterance or exhibition of defamation before a third person
or persons, it follows that defamation is not published when ad-
dressed only to the plaintiff. That is, the language or repre-
sentation cannot in such a case be actionable, per «e., even
though the alleged wrong be directly followed by great dejec-
tion of mind on the part of the plaintiff, and consequent sick-
ness and inability to carry on his usual avocation, and expense
attending upon his restoration to health, or upon the employ-
ment of help to carry on his business. As if the defendant
says to the plaintiff, (not in the presence of others) " You have
committed adultery witli F." The plaintiff, a farmer, suffers
immediate distress of mind and body ; becomes sick, and unable
to attend to his work ; his crops suffer, and he is obliged to em-
ploy extra help to carry on necessary work. The defendant has
not, however, become liable for defamation.^ And if the lan-
guage or representation be not actionable per «6., not actionable
without proof of some special damage, the fact that the publi-
cation of the defamation occurred in the presence of a third per-
son, who by authority reported it to the plaintiff with similar
results, seems not to make defendant liable.' This is on the
1 Roberts t?. Champlin, 14 Wend. 120; Croford v. Bllsfl, 2 Bulst. 150; Michel r.
Brown, 1 RoH. Abr. 70, pi. 45; Myau v, Okey, Freem. 17; Bullock r. Koon, 9
Cowen, 30; 4 Wend. 531; Ross r. Rouse, 1 Wend. 476; Power ». Price, 12 Wend.
500; Horn f. Foster, 19 Ark. 346; Wilson v. Oliphant, Wright, 153; Darling v.
Banks, 14 HI. 46; Studdard v. Linville, 3 Hawks, 474; Sibley v. Marsh. 7 Pick.
38; Wilson t?. Clous, 2 Spear, 1; Palmer v. Hunter, 8 Mo. 512; Cannon v. Phillips,
2 Sneed, ISrf; Harris t;. Woody, 9 Mo. 113. See Hutchins r. Blood, 25 Wend. 413.
2 Terwilliger v. Wands, 17 N. Y. 54; Wilson r. Golt. 17 N. Y. 442.
« TerwiUiger r. Wands, 17 N. Y. 54; Wilson v. Goit, 17 N. Y. 442, overruling
Bradt v. Towaley, 13 Wend. 253; Fuller v. Fenner, 16 Barb. 333.
§§ 57-8 SLANDER AXD LIBEL. 73
ground, however, that this is not such damage as the law
requires when the defamation is actionable per se. If the proper
kind of special damage be proven, it alters the case ; but it must
be the natural and usual result of the wrong ; and as a question
of law, the damage must be that resulting from injury to cfiar-
acter; that resulting from Jear of injury to character, or from
wounded feelings, is not sufficient.^
§ 57. Libel — Insufficient publication. — In the case of a
caricature, a witness stated that, having heard that the defend-
ant had a copy of it, he went to the latter 's house, and requested
to see it. The defendant thereupon produced it, and pointed out
the figure of the plaintifi, and other persons ridiculed. But
Lord Ellenborough ruled that this was not sufficient evidence of
publication to support the action, and the plaintiff was non-
suited.^ So, where a libel is contained in a letter from defend-
ant to plaintiff, but the messenger who takes it from one to the
other testifies that, without reading it, although unsealed, or
allowing any one else to read it, he delivered it to the plaintiff,
this is not a sufficient publication to sustain a civil action.^ A
defendant who in the course of his business carries and distrib-
utes parcels which contain libels, but which are tied up and con-
cealed from defendant's view, is not liable If he is ignorant of
the contents of the packages. The burden of proof, however,
is upon him to show his want of knowledge.^
§ 58. "WordB affecting trade, business, or occupation.
There are two general rules at common law for determining
whether words are actionable. First, the imputation of crimes
which would make the party obnoxious to punishment. Yet
there must be precision in the charge — a general charge of
> TerwiUlger v. Wands, 17 N. Y. 64; Wilson v. Golt, 17 N. Y. 442, overruling
Bradt v. Towsley, 13 Wend. 253; Fuller r. Fenner, 16 Barb. 333.
2 Smith V. Wood, 3 Camp. 323. See Gordon v. Spencer, 2 Black! . 2S6.
< Clutterbuck v. Chaffers, 1 Stark. 471. See, also, Mcintosh v. Matherly, 9 B.
• Mon. 119; Lyle r. Clason, 1 Caines, 581; Fouvine i7. McNease. Dudley, 303; Phil-
lips V. Jansen, 2 Esp. 624; Ward v. Smith, 4 Car. & P. 306.
* Day 17. Brean, 2 Moody & R. 54. See Dexter v. Spear, 4 Mason, 115; Layton
V, Harris, 3 Harrington, 406; Maloney v. Bartlett, 3 Camp. 210; Chubb v. Flan-
nagan, 6 Car. & P. 431; 4 Moody & R. 312a; Smith v. Ashley, 11 Met. 367; VIele
p. Gray, 10 Abb. Pr. 7; Fox v, Broderick, 14 Ir. C. L. 463; Weir v. Hoss, 6 Ala.
881.
n
74 SLANDER AND LIBEL. § 58
wickedness is not sufficient. And second, if the words may be
of probable ill consequence to a person in a trade, profession, or
office.^ But mere opprobrious words, which subject to no pun-
ishment or temporary loss, do not seem to be actionable when
spoken of men in office. No imputation of the breach of moral
or legal obligation, unless enforced by temporal sanctions ; no
charge of the want of chastity, unless under special sanctions,
will be sufficient to maintain an action.^ Some of the earlier
cases in regard to words spoken in reference to one's trade went
to extreme lengths — a clergyman having failed to obtain re-
dress for an imputation of adultery;^ and a schoolmistress hav-
ing been declared incompetent to maintain an action for a charge
of prostitution.* Yet such words could scarcely have failed to
injure the success of the plaintiffs in their several positions.
The doctrine of the older cases was, that either the want of some
general requisite, as honesty, capacity, or fidelity, must be
averred in the charge, or else the imputation must be connected
with the plaintiff's office, trade, or business ; ^ and the declaration
must set forth how it is so connected, and not leave it to be in-
ferred.^ Words spoken of a man's past conduct in a trade with
which he is no longer connected are not actionable, because the
gist of the action is that the words render him less able to carry
on the trade, and if he has quit it, the reason does not apply.^
Defamation under this head, to be actionable, per se, must
have a natural tendency to injure the party complaining, in his
occupation. It is not enough that it may possibly so injure him ;
but it may be shown by the plaintiff that the defamation was
published under circumstances which bring the case within the
rule of liability ; but without such evidence the plaintiff should
1 Onslow V. Home, 2 Blackst. 700; Aston v, Blagrave, 3 Lev. 30; 3 Mod. 26;
Skin. 88; Kent r. Pocock, Strange, 1168.
3 Onslow V, Home, supra ; Harrison i*. Stratton, 4 Esp. 218.
> Parratt v. Carpenter. Noy, 61; Cro. Eliz. 502. And see Gallwey v. Marshall,
9 Ex. 294.
* Wharton v. Brook, 1 Vent. 21.
» Lumby v. Allen, 1 Cromp. & J. 305; 1 Tyrw. 224.
« Ayer v. Craven, 2 Ad. & E. 2.
f Bellamy r. Burch, 16 Mees. & W. 590; Windsor v. Oliver, 41 Oa. 538; Edwards
V. Howell, 10 Ired. 211; Wilson i;. Runyon, Wright, 651; Collins v. Malidt W.
Jones, 304; Watson v. Vanderlash, Het. 71; Moore v. Syne, 2 Boll. 84; Gibbs v.
Price, Style. 231; Dicken v. Shepherd, 22 Md. 399; Allen v. Hillman, 12 Pick.
101; Harris r. Burley, 8 N. H. 216; Forward r. Adams, 7 Wend. 204.
§ 58 SLANDER AND LIBEL. 75
fail. As if the defendant charges the plaintiff, as a physician,
with incontinence. This does not imply disqualification, or
necessarily professional misconduct ; and without evidence con-
necting the imputation with the plaintiff's professional conduct,
he cannot recover.^ In all such cases, also, it is necessary that
the plaintiff should have been in the exercise of the duties of
the particular office, business, or occupation at the time of the
alleged publication of the defamation ; as if the defendant says
of the plaintiff, who had been a lessee of tolls at the time re-
ferred to by the defendant, " He was wanted at T — he was a
defaulter there." The words are not actionable per se.^ Where
it was alleged that the plaintiff was a parson and preacher, and
the defendant charged him with being an adulterer, it was
urged that this touched his credit and profit, but the action was
not supported.^ So where a physician was accused of killing a
patient with physic, without an averment that it was done know-
ingly and purposely ; ^ as he might have killed him with drugs,
by making an honest mistake by applying the wrong remedies.
Charges of bankruptcy against persons not strictly exercising an
office or trade do not seem to be actionable;^ but otherwise if
they do. ^* You are a cheating fellow, and keep a false book, and
I will prove it," spoken of a draper, were held not actionable, 6n
the ground that the '^ false book " might have had nothing to do
with the plaintiff's trade, and the words " cheating fellow " did
not necessarily imply that the cheating was done in his trade,
unless they had been spoken on a communication concerning it,
for he might have cheated at play, or gaming, etc.^ Although
it was held in Poe v. Mondf ord ^ that it is not actionable to say
1 AyretJ. Graven, 2 Ad. & E. 7; Lumby v. Allday, 1 Tyrw. 217; Gallwey «.
Karshall, 9 Ex. 294; Peard v. Jones, Croke Car. 382.
2 BeUamy v. Burch, 16 Mees. & W. 590; Gallwey v. Marshall, 9 Ex. 294.
8 Parratt v. Carpenter, Cro. Eliz. 503, 433; Nicholson v, Lyne, Cro. Eliz. 94;
Anon. Style, 49. See Payne v. Bennmorris, 1 Lev. 248. Contra, Demarest v.
Barring, 6 Cowen, 76.
^ Poe r. Mondford, Cro. Eliz. 620. But see Anon. 1 Anderson, 268.
* Barker v, Bingrose, Poph. 184; York t'. Cecil, 1 Brownlow & G. 18.
*Todd V, Hastings, 2 Saand. 307 ; Walmesley v. Russel, 2 Salk. 696 ; Savage v,
Boberg, 2 Salfc. 694 ; Godfrey v, Owen, Poph. 148 ; Anon. Godb. 40 ; Eglinton v.
AnnseU, Godb. 88; Anon. Goulds. 88; Byle's Case, Cro. Eliz. 171 ; Bronker's Case,
Oodb. 284 ; Brooke's Case, Hut. 14 ; Betts. v. Trevaman, Cro. Jao. 536 ; Harvey
V. Martin, T. Raym. 75 ; Lloyd v. Pierce. Cro. Jao. 424 : Coles v. Ketle, Cro. Jac.
204 ; Bray v, Hayne, Hob. 76 ; Bell v, Thatcher, Freem. 276.
T Cro. EUs. 620.
4
' 76 SLANDER AND LIBEL. § 59
of a physician, ^^ He hath killed a patient with physic ; '' and in
Foot V, Brown ^ that it was not actionable to say of an attorney,
or counsellor, when speaking of a particular suit : ^^ He knows
nothing about the suit ; he will lead you on until he has undone
you." The doctrine of these cases has been doubted, and de-
clared unsound. In Connecticut^ it has been held that words
are actionable in themselves which charge a physician with ig-
norance, or want of skill, in his treatment of a particular patient,
if the charge be isuch as imports gross ignorance, or unskillful-
ness. So in Johnson v. Robertson,* where it was held that the
following words, spoken of a physician in regard to his treat-
ment of a particular case — " He killed the child by giving it too
much calomel " — were actionable in themselves ; and so in the
case of Tutler v, Alwin,* where it was held to be actionable to
say of an apothecary that " he killed a patient with physic."
A single act of a physician may evince gross ignorance, and
such a total want of skill as will not fail to injure his reputa-
tion, and deprive him of general confidence. When such a
charge is made, the words have been held in America to be ac-
tionable per se,^
§ 59. The truth as a justification. — ^It is now usually con-
ceded by the courts, and frequently declared by statute or by
the constitutions of the States, that to show the truth of the
matter published is a complete defense to an action either of
slander or libel. A publication of the truth is, as to a civil ac-
tion, absolutely privileged.® But the justification must be as
broad* as the charge, and of the very charge attempted to be
1 8 Johns. 64.
« Sumner v. Utley, 7 Conn. 257.
«8 Port. 486.
* 11 Mod. 221.
* Sumner r. Utley, 7 Conn. 257 ; Secor v. Harris. 18 Barb. 425 ; Watson r. Van-
derlasli, Het. 71 ; EdsaU v. Russell, 4 Mac. & 6. 1090. See Camp t\ Martin, 23
Conn. 89. ContrcL^ Foot v. Brown, 8 Johns. 64. See, as to words imputing cer-
tain diseases, held not actionable. Bury v. Chappell, Goldsb. 135 ; Hunt r. Jones,
Cro. Jac. 490 ; Calif ord v. Knight, Cro. Jac. 514 ; James v. Rutlech, 4 Rep. 17a ;
Taylor r. Hall. 2 Strange, 1189 ; Carslake v. Mapledoram, 2 T. R. 473 ; Nichols v.
Guy, 2 Ind. 82 ; Pike v. Van Wormer, 6 How. Pr. 171 ; Irons v. Field, 9 R. I.
216 ; Insanity— verbal charge of— Gkorge, the Count Joannes v, Burt, 6 Allen, 336.
•IStarkie on Libel, 9: Maitland v. Goldney, 2 East. 426; Baum v. Clause, 5
Hill, 199; Foss v. Hildreth, 10 Allen, 76; Boot v. King, 7 Cow. 613; 4 Wend. 113 ;
Alcorn v. Hooker, 7 Blackf. 58.
§ 60 SLANDER AND LIBEL. 77
justified ; but it ne§d not go further.^ And it is sufficient to
justify so much of the defamatory matter as is actionable,
or so much as constitutes the sting of the charge. It is unnec-
essary to repeat and justify every word of the alleged defama-
tory matter. It is sufficient that the substance of the libelous
charge be justified.* The truth of the charge, whether the
latter be made orally or by printed or written language, is
usually a good defense to an action for the publication of alleged
defamation, though malicious and not reasonably believed to be
true, at least if oral — as a person has no right to a false charac-
ter, his real character suffers no damage that the law will rec-
ognize, when the truth is spoken.^ So, the rule goes to the ex-
tent of justifying a party in publishing of another the fact
that he has suffered the penalty of the law for the commission
of crime, though he may have been pardoned and have after-
ward become » good citizen. As, if the defendant publishes of
the plaintiff the statement that the latter had several years pre-
viously committed a theft. The charge is true, though after
conviction thereof the plaintiff was pardoned and afterward
held a public office. Such an accusation is damnum absque
injurku^
§ 60. Privileged pnblicationB and communicationB. —
There are occa^ons or circumstances in which the publication
of what would otherwise be actionable defamation is excused.
Privileged communications are either absolutely or prima facie
privileged* — ^absolutely privileged, when the fact that it was
published with actual, provable malice — ^that is, malice in fact —
is immaterial and inadmissible ; j>rima facie privileged, when
evidence is admissible to show that the communication was pub-
lished with actual malice. It is sometimes only that words,
spoken or published, which affect another, amount to a wrong,
1 Sanford i;. Oaddis, 13111. 329.
2 Clarke v. Taylor, 4 Bing. N. C. 654; Wiliwn v. Nations, 5 Yerg. 211; Morrtoon
r. Banner, 3 Bing. N. 0. 76S; Edwards v. Bell, 1 Bing. 403; Moore v. TerreU, 1
N. & M. 559; Cook v. Association, 5 Bl. C. C. 352; Barrows t;. Carpenter, 1 Cliff.
204.
'Fobs v, Hildreth, 10 Allen, 76; King v. Root, 4 Wend. 113.
4 Baum V. Clause, 5 Hill, 199.
^ Hastings v. Lusk, 22 Wend. 410; Shelf er v, Gooding, 2 Jones, 175. See White
V. Nichols, 3 How. 2G6; Bigelow on Torts, chap. 2.
78 8LANDER AND LIBEL. § 61
however great be the injury. There is a lar^e class of publica-
tions which are privileged by reason of the occasion on which
they are made. They comprehend all statements made bona fide
in performance of a duty, or with a fair and reasonable purpose
of protecting the interest of the person making them,^ or the in-
terest of the person to whom they are made.^ A communica-
tion made bona fide upon any subject-matter upon which the
party communicating has an interest, or in reference to which
he has a duty, is privileged, if made to a person having a cor-
responding interest or duty, although it contain criminating
matter which, without this privilege, would be slanderous and
actionable. But in this view the word " duty " cannot be con-
fined to legal duties, which may be enforced by indictment, ac-
tion, or mandamus, but must include many moral and social
duties.^ Townshend gives as the rule as to this privilege the
following : " One may publish, by speech or writing, whatever
he honestly believes is essential to the protection of his own
rights or to the rights of another, provided the publication be not
unnecessarily made to others than to those persons whom the pub-
lisher honestly believes can assist him in the protection of his
own rights, or to those whom he honestly believes will, by
reason of a knowledge of the matter published, be better ena-
bled to assert or to protect from invasion, either their own
rights or the rights of others entrusted to their guardianship.*'
§ 61. Extent of the privilege. — ^The privilege is extended
to the allegations in written pleadings, to affidavits made in the
course of legal proceedings, though the affiants be not parties,
and to statements of witnesses on the stand, and of the presid-
ing judge, and of a coroner holding an inquest, and to words
uttered in the proper discharge of official duty.* So a juror is
under protection for anything he may say during the delibera-
tions in the jury room, whether pertinent to the cause or not,
1 Townshend on Slander, sec. 209; Somerville v. Hawkins, 10 Com. B. 0S3; 15
Jar. 450.
3 Pattison v. Jones, 8 B. & G. 678.
> Harrison v', Bnsh, 5 El. & B. 349; Townshend on Slander, sec. 209.
^Goodenow v. Tappan, 1 Ohio, 60; Dnnham v. Powers, 42 Vt. 1; Henderson v.
Broomhead, 4 Hurl. & N. 577; Garr v. Selden, 4 Comst. 91; Soott v. Stansfield,
L. B. 3Bz. 220; Beevis v. Smith, 18 Com. B. 126; Thomas v. Chuston, 2 Best &
S. 475; Bigelow on Torts, 54.
§ 61 SLANDER AND LIBEL. 79
80 long as he honestly believed that he was properly discharg-
ing the duties of a juror, as where a juror states in the jury
room that he could not believe a party under oath, and accuses
him of fraud and perjury.^ No action, either for slander or
libel, can be maintained against a judge, magistrate, or person
sitting in a judicial capacity over any court, judicial or military,
recognized by and constituted according to law, nor against
suitors, prosecutors, witnesses, counsel, or jurors, for anything
said or done relative and pertinent to the matter in hand in the
ordinary course of a judicial proceeding, investigation, or in-
quiry, civil or criminal, by or before any such tribunal, however
false or malicious it may be.^ So in regard to statements and
publications in the course of the proceedings of the legislature,
if they relate to the proceedings under consideration. No leg-
islator is liable for pertinent remarks made during debate, how-
ever injurious to the reputation or however offensive they may
be ; ^ but he cannot print a speech delivered by him in the leg-
islative halls, and containing defamatory matter, without be-
coming liable, because the privilege is local, and confined to the
legislative apartments.^ The same privilege, with like restric-
tions, is extended to persons petitioning the legislature and leg-
islative committees,^ and so with proceedings before church
organizations for the discipline of members. These are con-
sidered {jt^S2 -judicial, and language, though defamatory, ut-
tered in the course of such proceedings, is privileged, if it be
pertinent to the matter in issue.® Literary criticism, if it be
bona fide criticism, is also privileged, so far as actions for de-
famation are concerned ; but not if the critic turn aside from the
proper purpose of criticism, and ridicule the author's person
or character ; "^ and so with criticism of works of art.® State-
ments made by a master derogatory to the character of his dis-
charged servants are prima facie privileged, if made with the
1 Danham t7. Powers, 42 Vt. 1.
^Starkie, Slander and Libel, 184, 4th Eng. ed.
s Bex V, Abingdon, 1 Esp. 226.
* Rex o. Abingdon, 1 Esp. 226; Rex v. Greevy, 1 Maule & S. 273; Stockdaie v.
Hansard, 9 Ad. & E. 1. «
•Lake t7. King, 1 Saund. 1316; Hare v. Miller, 3 Leon. 138, 163.
• York V, Pease, 2 Gray. 282. See Famsworth t;. Storrs, 6 Gush. 412.
7 Garr v. Hood, 1 Gamp. 3S5.
■ Thompson v. Shakell, 1 Moody & M. 187.
80 SLANDER AND LIBEL. § 62
honest intention of protecting others, and not in an officious man-
ner,^ and not maliciously. Voluntary communications derogatory
to character may be made without liability, if they are honafide^
by attorneys to their clients about parties with whom the
clients are about to deal, and by landlords to their tenants in
reference to the conduct of inmates of the premises, etc. When
the relations between the parties are confidential, considerable
latitude is allowed, on the ground of the protection of the in-
terests of the persons to whom the communications are made.^
§ 62. Reports of trials before the courts, '' if sufficiently
full to give a correct and adequate impression of the proceed-
ings, and if not attended with defamatory comments, are abso-
lutely privileged. If, however, the same should be partial, or
followed by comments containing defamatory matter, the priv-
ilege would fail and the publisher, editor, and author would be
liable for any defamation thereby spread. For example, the
defendant prints a short summary of the facts of a certain case
in which the plaintiff has acted as attorney. The account of
the trial stated that the then defendant's counsel was extremely
severe and amusing at the expense of the present plaintiff. It
then sets out parts of the speech of the defendant's counsel,
which contain severe reflections on the conduct of the plaintiff
in the trial of that action. The defendant is liable."^ The
subject of the trial may be stated as a heading as long as there
is no comment. If a report is headed '^ Wilful and corrupt
perjury," and this is the substance of the indictment or the
charge, it is privileged.* . But the publication of ex parte pro-
ceedings before inferior courts seems not to be privileged.^
The publication of actual legislative proceedings is privi-
leged, though they contained defamatory matter,^ and proba-
bly fair and honest comments upon them are also privileged.
The conduct of public officers and of candidates for public
1 Pattison p. Jones, 8 Bam. & C. 578.
2Davia r. Reeves, 5 Ir. Com. L. 79; Knight v. Gibbs, 3 Nev. & M. 469.
8 Flint r. Pike, 4 Barn. & Cr. 473. See Lewis & Clement, 3 ^arn. &, Aid. 702.
* Ijewis t'. Levy, El. B. & £. 537. *
6 Cincinnati Gazette Co. v. Timberlake, 10. Ohio St. 548; Matthews v. Beach, 5
Sandf. 206; Davison v. Duncan, 7 £1. & B. 229.
• Wason r. Walter, L. R. 4 Q. B. 73.
•
§ 63 SLANDER AND LIBEL. 81
office may be criticised, but the critic must be actuated
by an honest desire to fullfil a duty toward the public;
and if he makes the occasion an opportunity for gratify-
ing personal viitdictiveness and hostility, he will be liable.^
Publications to protect one from the frauds or depredations
of another are prima f(icie privileged, and so ar^ those ad-
dressed to the public in vindication of character already as-
sailed, if made honestly and in self-defense.^
§ 63. Privileged petitions. — Petitions and memorials pre-
pared bona fide and presented to the legislative or executive
departments of government, to state officers or ministers of
state, complaining of the conduct of magistrates or officers,
and containing otherwise defamatory matter, but the state-
ments and allegations being honestly believed to be true, are
privileged. This is on the ground that all persons have an
interest in the pure administration of public justice, and it is
the duty of all persons who witness official misconduct to en-
deavor to bring it to the attention of those whose duty it is to
inquire into and punish it. But if the charges are frivolous,
made without due inquiry into their truth or without any knowl-
edge on the subject, the petitioner may be deemed to have acted
from malicious motives, and his communication will not be
privileged.* Where the creditor of an officer in the English
army sent a petition to the Secretary of War. inclosing bills of
exchange accepted by the officer and containing statements de-
rogatory to the character of the officer as a man of honor, and
concluded with a prayer that the officer might be ordered to
discharge the debts, it was held that, although neither the Sec-
retary nor even the Crown had power to order the money to be
paid, yet if the jury considered that the petition contained only
an honest statement of fact as the petitioner understood it, and
it was bona fide for the purposes of redress and not for the pur-
pose of slandering the plaintiff, they should find for the defendant.^
1 Campbell v. Spottiswood, 3 Best & S. 776.
2 O'Donoghue v. Hussey, Irish B. 5 C. L. 124; Hatch v. Lane, 105 Mass. 394;
Rex ». Veley, 4 ^st. & P. 1117. *
< Harrison v. Bush, 6 El. & Bl. 354; Sturt v. Blaf(g, 10 Q. B. 906; Thorn r.
Blauchard, 5 Johns. 508; Gray v. Pentland, 2 S. & B. 23; Hunt v. Bennett, 19
N. Y. 173: Lake v. King, 1 Saund. 132.
*Fairman v. Ives, 5 B. & Aid. 644; Wenman r. Ash, 13 Com. B. 845. See
Blagg V. Sturt, 10 Q. B. 905.
D. A. I.— 6.
82 SLANDER AND LIBEL. §§ 64-5
§ 64. Communications in rafaranca to propoead mar-
riages. — Communications from near relations as to the charac-
ter of a person whom the relative is about to marry are priv-
ileged, if made bona fide, A son-in-law of a' widow, to whom
the plaintiff was paying his addresses, wrote a letter to the lady
charging the plaintiff with general gross misconduct, and warn-
ing her against him, and the communication was considered
privileged. Alderson, B., said : " If no explanation had been
given of the circumstances under which the letter was written,
the law would, from the contents, infer it to have been published
with a malicious motive against the plaintiff. But when it is
shown that the parties were standing in circumstances of con-
fidence and near relationship towards each other, I think the de-
fendant's conduct justifiable, if he really believed in the truth
of the statements which he made, though such statements were
in fact erroneous ; for it is for the common good of all that com-
munications between parties situated as these were should be
free and unrestrained. The whole question is, whether this is
a bona fide letter." ^
§ 65. Privilage of connsel in argnmant. — Another in-
stance of damnum absque injuria is where an attack is made
by counsel upon the character of a witness in the course of a
trial. "The benefit of the constitutional right to counsel de-
pends very greatly on the freedom with which he is allowed to
act, and to comment on the facts appearing in the case, and on
the inferences deducible therefrom. The character, conduct,
and motives of parties and their witnesses, as well as of other
persons more remotely connected with the proceedings, enter
very largely into any judicial inquiry, and must form the sub-
ject of comment, if they are to be sifted and weighed. To make
the comment of value, there must be the liberty of examination
in every possible light, and of suggesting any view of the cir-
cumstances of* the case, and of the motives surrounding it, which
seems legitimate to the person discussing them. It will often hap-
pen in criminal proceedings, that while no reasonable doubt can
exist that a crime has been committed, there may'be very great
doubt whether the prosecutor or the accused is the guilty party ;
1 Todd V. Hawkins, 2 Moody & R. 21. See " Joannes" v. Bennett, 5 Allen, 169.
§ 65 SLANDER AND LIBEL. 83
and to confine the counsel for the defense to such remarks con-
cerning the prosecutor as he might justify if he had made them
without special occasion, would render the right to counsel, in
many cases, of no value. The law, justly and necessarily, in
view of the importance of the privilege, allows a very great
liberty ih these cases, and surrounds them with a protection that
is always a complete shield, except where the privilege of coun-
sel has been plainly and palpably abused.'' ^
An attorney, therefore, in the discussion of his client's cause,
is not liable for words spoken or written relative to the matters
in controversy, or subjects which incidentally arise in the course
of the trial. And no action will lie for such speaking or writing,
however false, defamatory, or malicious may be the words, pro-
vided the matter was material to the issue or inquiry before the
court.^ But if an attorney wantonly departs from the evidence
and point in issue, with an intent to injure the character of the
adversary or that of others, without propriety or probable
ground, he is responsible.^
To say that no responsibility attaches, however false or ma-
licious the words may be, seems to be stating the rule broadly;
but, with the proviso above mentioned, it is fully sustained by
the authorities.
Chief Justice Shaw has stated the rule as follows : '' We take
the rule to be well settled by the authorities that words spoken
in the course of judicial proceedings, though they are such as
impute crime to another, and therefore if spoken elsewhere
would import malice and be actionable in themselves, are not
actionable, if they are applicable and pertinent to the subject
of the inquiry. The question, therefore, in such cases is, not
whether the words spoken are true, not whether they are action-
able in themselves ; but whether they were spoken in the course
of judicial proceedings, and whether they are relevant and perti-
- Cooley^s Coost. Lim. *443; Brook r. Montague, Cro. Jac. 90. Approved and
applied in Hodgson v. Scarlett, 1 Bam. & Aid. 232. See, also, Mackay v. Ford, 5
Hurl. & K. 792; McMillan v. Birch, 1 Bin. 178; Weeks on Attorneys and Counsel-
lors at Law, sec. 110.
2 Kewfield v. Gopperman, 15 Abb. Pr. X. S. 360; Marsh v. Ellsworth, 36 How.
Pr. 532; 1 Sweeny, 52; Garrr. Selden, 4 N. Y. 91 ; Commonwealth t\ Culver, 1 Pa.
li. (T. R. 361.
» Ibid. ; Marsh v. EUsworth, 60 N. Y. 309; Ring v. Wheeler, 7 Co wen, 725; Has-
tings ?•. Lnsk, 22 Wend. 410; Gilbert v. People, 1 Denio, 41.
84 SLANDER AND LIBEL. § 65
nent to the cause or subject of the inquiry. And in determining
what is pertinent much latitude must be allowed to the judg-
ment and discretion of those who are intrusted with the conduct
of a cause in court, and a much larger allowance made for the
ardent and excited feelings with which a party or counsel, who
naturally and almost necessarily identifies himself with his client^
may become animated by constantly regarding one side only of
an interesting and animated controversy in which the dearest
rights of such party may become involved."
The limit to the privilege was considered by him to be this :
That a party or counsel shall not avail himself of his situation
to gratify private malice by uttering slanderous expressions,
either against a party, witness, or third person, which have no
relation to the cause or subject-matter of the inquiry. Subject
to this restriction, it is, on the whole, for the public interest, and
best calculated to subserve the purposes of justice, to allow coun-
sel full freedom of speech in conducting the cases and advocat-
ing and sustaining the rights of their constituents ; and this free-
dom of discussion ought not to be impaired by numerous and re-
fined distinctions.^
The privilege accorded to advocates has always been very great
while they are actually commenting upon the conduct of parties,
in any case in which they are engaged as counsel. The extent
of the privilege has been asserted in very broad terms. And in
Wood V. Gunston, Styles, 462, it was said, " that ^f a counsel
speaks scandalous words against one in defending his client's
cause, an action lies not against him for so doing, for it is his
duty to speak for his client, and it shall be intended to be spoken
according to his client's instructions.'' But this is not the true
reason ; and Lord EUenborough, in repudiating this doctrine, and
commenting on its injustice, said:'^ ^^If an action be brought
against a counsel, then, according to that case, he is justified,
because it will be intended that he spoke by the information of
his client, and if an action be brought against the client he
may justify by showing that he gave no such information to
1 Hoar V, Wood, 3 Met. 197; Padmore v. Lawrence, 11 Ad. & E. 380; Ring v.
Wheeler, 7 Cowen, 725; Mower t?. Watson, 11 Vt. 356; Gilbert t'. People, 1 Denio,
41; Hastings v. Lusk, 22 Wend. 410; Bradley v. Heath, 12 Pick. 163; Warner v.
Paine, 2 Sand. Ch. 195; Garr i\ Selden, 4 N. Y. 91; Jennings v. Paine, 4 Wis. 358.
2 Hodgson V. Scarlett, 1 Barn. & Aid. 238.
§ 65 8LANDER AND LIBEL. 85
his counsel. So that, if that case w.ere law, an injured party
would be without remedy. There must be some limit laid
down." In this case, an attorney named Hodgson brought an
action against Scarlett, afterward Lord Abinger, who had, at the
trial of a cause in which the former acted as attorney for the
plaintiff, described him, in his address to the jury, as ^'a fraudu-
lent and wicked attorney." The court decided the action not
maintainable. Lord EUenborough, in delivering the judgment,
used the following language: '^A counsel, intrusted with the
interests of others, and speaking from their information, for the
sake of public convenience, is privileged in commenting fairly
and hona fide on the circumstances of the case, and in making
observations on the parties concerned, and their instruments or
agents in bringing the cause into court. Now, the plaintiff in
this case was not merely the attorney, but was mixed up in the
concoction of the antecedent facts, out of which the original
cause arose ; he was cognizant of all the circumstances, and
knew that the plaintiff had no ground of action in that case, in
consequence of having already received more than the amount
demandable by him. It was in commenting on this conduct
that the words were used by the defendant. He had a right so
to comment, for the plaintiff was mixed up with the circum-
stances of the case, and was the agent and instrument in the
transaction. The defendant then says that he is a fraudulent
and wicked attorney. These were words not used at random
and unnecessary, but were a comment upon the plaintiff 's con-
duct as attorney. Perhaps they were too strong — it may
have been too much to say that he was guilty of fraud as be-
tween man and man, and of wickedness in foro divino. The
expression, in the exercise of a candor fit to be adopted, might
have been spared. But still a counsel might, bona fide, think
such an expression justifiable under the circumstances. It
appears to me that the words spoken were uttered in the
original cause, and were relevant and pertinent to it, and
consequently that this action is not maintainable." This de-
cision is based upon two leading grounds, viz., (1) the
information given by the client, and (2) its relevancy to the
cause.
Still older authorities have made the same distinctions. In
86 SLANDER AND LIBEL. § 66
» ' the reign of James I,^ Sir Henry Montague pleaded, in an action
brought against him, that he had spoken certain words com-
plained of .as consUiarius et peritus in lege. The court adjudged
that " a counsellor in law retained, hath a privilege to enforce
anything which is informed him by his client, and to give it in
evidence, it being pertinent to the matter in question, and not
to examine whether it be true or false ; but it is at the peril of
him who informs it, for a counsellor is at his peril to give in
evidence that which his client informs him, being pertinent in
the matter in question, otherwise action upon the case lies
against him by his client, as Popham said ; but if he give in
evidence anything not material to the issue which is scandalous,
he ought. to aver it to be true, otherwise he is punishable ; for
it shall be contended as spoken maliciously and without cause ;
which is good ground for an action."
The doctrine attributed to Popham was doubtless the law in
very early times, and action on the case would probably lie, if a
counsellor refused " to give in evidence that which his client in-
formed him." ^ Afterward, however, it was expressly decided
to the contrary, on the ground that the law looked upon the
services of a counsel as given gratuitously^ so that he is not an-
swerable for any neglect or default in the conduct of a cause.
Going several lengths further upon the question of immunity
of counsel at a trial, Mr. Justice Bayley, in a later case,^ said :
" The speech of a counsel is privileged by the occasion on which
it is spoken ; he is at liberty to make strong, even calumnious
observations against the party, the witnesses, and the attorney
in the cause. The law presumes that he acts in discharge of
his duty, and in pursuance of his instructions, and allows him
this privilege, because it is for the advantage of the administra-
tion of justice that he should have free liberty of speech. But
the privilege is confessedly confined to the utterance of the
words complained of in a court of justice. If the counsel who
has spoken them, or any one else, afterward publishes or repeats
them out of court, he becomes liable to an action. The privi-
lege is strictly one of counsel in court. It was decided in the
1 Brook V. Sir Henry Montage, Gro. Jac. 90.
aRolle'sAbridg. 91.
8 Flint 17. Pike, 4 Baru. & C, 478.
§§ 66-7 SLANDER AND LIBEL. 87
case of Flint v. Pike, 4 Barn. & C. 480, that, although any one
IS ' at liberty to publish a history of the trial — that is, of the
facts of the case, and of the law as applied to those facts — he is
not at liberty to publish observations made by counsel injurious
to the character of individuals.' "
§ 66. Argnxnant of counsel under control of the court
The privilege of counsel as to argument being understood, it is
also to be borne in mind that the right is to be exercised under
the control and direction of the court. The determination of
the question as to what shall be admitted in argument to the
jury, outside of the facts brought out in evidence, the degree
of invective allowed to counsel, and the time during which the
argument may continue, have generally been considered subject
to judicial regulation.^
§ 67. Responsibility of counsel in argument. — A» long
as counsel confine themselves to the issues, they are privileged
to comment upon individuals, without being liable in an action
against them. Words, either spoken or written, in a legal pro-
ceeding, they being pertinent and material to the controversy,
are privileged. This is the general rule,^ but counsel cannot go
outside of the case and make slanderous attacks upon a party.
If he does, he is no more privileged than any other person, and
is liable. An attorney, in defending his client from a charge of
assault in turning out the plaintiff from certain premises in which
he had agreed to sell wine under agreement with a certain party,
stated that that party had sufficient reasons for determining the
agreement, and that he had been plundered by the plaintiff to a
frightful extent. This was held a statement connected with
the transaction, and an inference from the facts, and was privi-
leged.^ And so, where a party was alleged to have kept a sum
of money, which by his contract he ought not to have kept,
1 State V. Hamilton, 55 Mo. 520 ; State v. Waltham, 4S Mo. 55 ; Proffatt on
Trial by Jury, sec. 249. See trial of Dean of St. Asaph, 21 How. St. Tr. 847 ;
Weeks on attorneys and Counsellors at Law, sec. 111.
^Proffat on Trial by Jury, sec. 265; Garr v. Selden, 4 N. Y. 91; Lea v. White,
4Sneed» 111; Jennings r. Paine, 4 Wis. 358; Parker v. Mitchell, 31 Barb. 469;
Hoar V. Wood. 3 Met. 193; Hodgson t*. Scarlett, 1 Barn. & Aid. 232: McMillan v.
Birch, 1 Binn. 178; Brook v. Montague, Cro. Jac. 90.
« Mackey i;. Ford, 5 Hurl. & N. 792.
88 MALICIOUS PROSECUTION. §§ 68-9
counsel used the language, ^^ He has defrauded us/' this was
held privileged.^ . The subject has been already discussed in a
preceding section while considering the general privilege of
counsel in argument.^
§ 68. Publication of argnment. — There is, however, a
well-defined difference between the rules of law which protect
communications, because of the occasion on which they are
made, and the duty resting upon the person making them, and
those rules which concern the spreading before the world the
same communications. It does not follow, because a counsel
may freely speak in court as he believes, or is instructed, that
therefore he may publish his speech through the public press.
The priyilege in court is necessary to the complete discharge of
his duty to his client ; but when the suit is ended, that duty is
discharged, and he is not called upon to append from the court
and jtiry to the general public. Still, it seems settled that a
fair and impartial account of judicial proceedings which have
not been ex 2Kfrte, but in the hearing of both parties, is, gener-
ally speaking, justifiable.^
§ 69. Malicious prosecutioxL — To maintain an action for
malicious prosecution proper, three facts, if controverted, must
1 Nt^edham v. Dowling, 15 Ijelvt J. Com. P. 9. See Weeks on Attorneys and
Counsellors at Law, .seo. 110. AVliere a person, appearing for himself, applied
to the court for an extension of time to file a transcript on appeal, and in the
application went outside of the reason for asking the order, which was an acci-
dent to himself that disabled him from preparing tlie transcript, and charged
his attorney in the court below with collusion with the adverse attorney, this
was held not privileged, and was also held to be libelous per se. (Wyatt v.
Buell, 47 Cal. 624.)
- ^^'eeks on Attorneys and Counsellors at Law, sec. IIG. A printed report by
the defendant of proceedings before a justice of the peace, resulting in the
committal of the plaintiff, has recently been held privileged in Maryland, if
found by the jury to have been a true report, and made without malice; and so
of comments on the same, if found to be fair comments. (McBee v. Fulton, 4V
Md. 403.)
8 Hoare v. Silverlock, 9 Com. H. 20; Lewis v. Levy, El. B. & E. 537; Ryalls r.
Leader, L. R. 1 Ex. 296; Stanley v. Webb, 4 Sand. 21; Cincinnati Co. v. Tim-
berlake, 10 Ohio, (N. S.) 548. See Rex v. Carlisle, 3 Barn. & Aid. ^67: Rex v.
Creavy, 1 Maule & S. 273, as to indecent and blasphemous publications. See
also Cooley's Const. Limitations, *449. As to publication of speech of client
refiectiug on counsel, see Sandford i'. Bennett, 24 X. Y. 20; and upon the general
subject, Townshend on Libel and Slander, 3rd ed.. sec. 2*29; Edsall v. Brooks, 17
Abb. Pr. 227; 2t? How. Pr. 426.
§ 69 MALICIOUS PROSECUTION. 89
be established : first, that the prosecution is at end, and was de-
termined in favor of the plaintiff ; second, the want of probable
cause ; third, malice. A mere acquittal is not prima facie evi-
dence of probable cause ; some other evidence must be given.^
1 VHnderbilt ». Mathis, 5 Diier, 304; Gorton v. DeAngells, 6 Wend. 418; Van-
dnzer v. lindeiman, 10 Johns. 106; Murray r. Long, 1 Wend. 140; Winans v.
Tajlor, 6 Bing. 183; Wiggin v. Coffin, 3 Story, 1; Bulkeley v. Smith, 2 Duer, 271;
Levy V. Brannan, 39 Cal. 485; Good v. French, 115 Mas8.'20l.
1st. The prosecution must have terminated, (Cardival v. Smith, 109 Mass. 158;
O'Brien v. Barry, 106 Mass. oOO; Fisher v. Bristow, 1 Doug. 215) and this the
plaintiff must show. It must have terminated with an acquittal: otherwise,
the case would be retried in the second action (Parker r. Huntington, 7 Gray,
37: Kaconv. Towne, 4 Cush. 217: Boyd v. Cross, 35 Md. 194); and if the pro-
ceeding ended in a compromise, there is no ground for the action. (Mayer v.
Walter. 64 Pa. 283; Hamilburgh v. Shephard, 119 Mass. 30.) But it has been
said not to be necessary to show an acquittal in ex parte proceedings that are
based upon affidavits, the truth of which is not controvertible, as in an action
for maliciously and without reasonable or probable cause procuring the plaintiff
to be held to bail to keep the peace. (Steward x\ Gromett, 7 Com. B. N. S. 191.
See Cardival ». Smith, stipra.)
2nd. Want of reasonable and probable cause must be shown — sufficient,
probably, to satisfy a reasonable man that the accuser had no ground for
proceeding except his desire to injure the accused, (Willaus v. Taylor, 6 Bing.
18^)) or that the accuser acted on very slight circumstances of suspicion, (Busst
r. Gibbons, 30 Law J. Ex. 75) to be judged by the existing facts at the time
of the arrest, (Holbum t'. Neal, 4 Dana, 120; Swaim v. Stafford, 4 Ired. 392, 398)
without regard to what was found out afterwards. The belief must have been
that of a reasonable man. There must be reasonable ground for suspicion,
supported by circumstances sufficiently strong in themselves to warrant a
cautious man in the belief of the guilt of the accused. (Muns v. Diipont, 3
Wa.sh. C. C. 31; Bacon r. Towne, 4 Cush. 238; Barron r. Mason, 31 Vt. 189;
Boyd i\ Cross, 35 Md. 194; Carl v. Ayers, 53 N. Y. 14; Shane v. Brown, 28
Iowa, .'J7.)
It is held by some cases that if the prosecutor did not in fact know or believe
that there was any grouud for the prosecution, yet it turned out there wa.H, he
is still liable (Delegal r. Highley, 3 Bing. (X. C.) 950; Broad v. Ham, 5 Ibid. 722;
Bell ('. Piercy, 5 Ired. 83) ; but others hint, at least, that there must be an actual
want of probable cause, as well as the belief or knowledge of the fact. (Mo wry
r. Miller, 3 Leigh, 561; Adams v, Lisher, 3 Blackf. 241; Hickman r. Griffin, 6
Mo. ^.>T.)
3rtl. There must be malice. This may be inferred from the want of probable
cause, though not necessarily. It is for the plaintiff to show. (I^evy r. Bran-
nan, ;n) Cal. 485; Dietz i\ Langlitt, 63 Pa. 2,^4; Boyd v. Cross, 35 Md. 194.)
If the charge upon which a party is indicted or arrested be not scandalous,
so that an action of slander might be maintained on it if made without the
forms of law, special damage must be averred and proven. The indictment
must charge a crime, not merely a trespass, or special injury must be shown.
(Frierson v. Hewitt, 2 Hill, (S. C.)499; Byne r. Moore, 5 Taunt. 187.) If the
court has exceeded its jurisdiction, or the warrant or Indictment be defective,
numerous authorities hold that a party cannot maintain malicious prosecution,
but only slander or trespass. (Turpin v. Remy, 3 Blackf. 211; Bodwell t7. Os-
good, 3 Pick. 379; Braveboy r. Cockfield, and cases cited.) Professional advice
90 MALICIOUS PROSECUTION. § 70
The former prosecution must appear to have been maliciously
instituted. If either of these things fail there is usually an end
to the suit. No action can be sustained when the indictment was
ignored.^ If a prosecutor take the advice of a practicing law-
yer upon the proposition whether the facts justify a complaint,
and act bo?ia fide upon the advice given, he will be protected,
even though the counsel gave erroneous advice. As where upon
a statement of facts an attorney advises a defendant that he can
safely procure the plaintiff's arrest, the defendant is not liable,
though the facts presented did not constitute probable cause.^
A want of probable cause cannot be inferred from evidence of
malice alone, since a person may maliciously prosecute another
when there are ample grounds for the prosecution, when there
is the strongest evidence against the party .^
§ 70. Malicious proeecntioii of civil actions. — If a per-
son prosecutes a civil action against another maliciously, and
without reasonable and probable cause, no action for damages can
usually be supported against the prosecutor. A man may, if he
fancies hja has a civil action against another, prosecute his claim,
however false or unfounded it may be. The rules governing
malicious prosecutions in the criminal courts do not apply.^ It
cannot, however, be denied that in cases of extremely vexatious
suits, where special damage has been actually suffered, alleged,
and shown, the action has been allowed.^ No action can gener-
ally be maintained for improperly promoting a civil action in the
name of a third person, unless maliciously, and without reason-
able or probable cause.®
obtained before making the arrest or instituting the proceedings is a defense, if
the party acted upon it bona fide. (Snow v, AUen, 1 Stark. 602; Kimmel v. Henry,
(>4 111. 505; Ravenga v. Mackintosh, 2 Barn. & C. 603; Hewlett v. Cruchley, 5
Taunt. 277; Cooper r. Utterbach, 37 Md. 282; Walter v. Sample, 25 Pa. 275.)
1 Byne i*. Moore, 5 Taunt. 187.
2 Snow V. Allen, 1 Stark. 502.
« Boyd V. Cross, 35 Md. 194; Turner v. Ambler, 10 Q. B. 252; WiUiams v. Tay-
lor, 6 Bing. 183; Skidmore v. Bricker,77 111. 104; Krug v. Ward, Ibid. 603; Heyne
t'. Blair, 62 N. Y. 19.
* Beauchamp v. Croft, Keilw. 26; Potts v. Imlay, 1 South. 330; Bay r. Law,
I Pet. C. C. 207; Mayer v. Walter, 64 Pa. 283; Kramer ». Stock, 10 Watts, 115.
6 Saville v. Roberts, 1 Ld. Raym. 374; 1 Salk. 13. See Thomas v. Rouse, 2 Brev.
75; Cloasen v. Staples, 42 Vt. 209: Whipple v. Fuller, 11 Conn. 581; Van Duzer v.
Ldnderman, 10 Johns. 106; Pangbum r. Bull, 1 Wend. 345; Marbourg v. Smith,
II Kans. 554; Cox v. Taylor's Adm. 10 B. Monr. 17.
<* Flight V. Leman, 4 Q. B. 883. It has been held that an action wiU lie for the
§ 71 MALICIOUS PROSECUTION. 91
§ 71. Defendant's proof. — In actions for malicious prose-
cution the defendant may show that he acted honajide^ and had
reasonable ground for believing that the facts within his knowl-
edge constituted the offense charged. Or, in other words, he
may show the absence of malice, and the existence of probable
caiise.^ In order to show bona fides it is competent id prove
any communication that giay have been made to him prior to
the commission of the grievance, to show the impression made
on his mind, and the materials he had before him in forming an
opinion. So, where the cause of action constituted in making a
complaint against the defendant on a charge of perjury, the de-
fendant may testify that at the time of making the complaint he
believed that the evidence given by the plaintiff was material,
and that he was guilty of the offense charged. The defendant
may also show the threats of the plaintiff to commit the offense
of which he was charged ; ^ or admissions of the plaintiff that
there was probable cause, and the defendant was not actuated
by malice ; ^ and general repute as to similar guilty acts on the
part of the plaintiff.^
malicious prosecution of suits in bankruptcy (Chapman v. Pickersgill, 2 Wils.
liS; Farley v. Danks, 4 El. & B. 493; Whitworth v. Hall, 2 Barn. & Adol. 695);
and so in cases of arrest in civU actions (Collins v. Hayte, 60 111. 337; Burhaus
v. Sanford, 19 Wend. 417; Watkins r. Baird, 6 Mass. 506; Austin v. Debnam, 3
Bam. & C. 139; Sinclair v. Eldred, 4 Taunt. 7); and so in some cases of attach-
ment of property, if the attachment was taken out maliciously (Holliday v.
Sterling, 62 Mo. 321; Fortmanv. Bottler, 8 Ohio, (N. S.) 548; Tomlinson t7. War-
Der, 9 Ohio, 104; Nelson v, Danielson, 82 111. 645; Hayden v. Shed, 11 Mass. 500;
Lindsay v. Lamed, 17 Mass. 190; Pierce v, Thompson, 6 Pick. 193; McCuUoagh
V. Grishobber, 4 Watts & S. 201; Walser v. Thies, 56 Mo. 89; Spengler v. Davy,
15Grat. 381; FuUenwider r. Mc Williams, 7 Bush, 389); and in proceedings to
have a party declared insane, if they are unfounded and malicious. (Lockenour
V. Sides, 67 Ind. 360.)
^ Weston 17. Beeman, 27 Law J. Ex. 57; Turner v. Ambler, 10 Q. B. 260; McKown
V. Hunter, 30 N. T. 626; McLaren v. Birdsong, 24 6a. 266; Barron v. Mason, 31
Vt. 189; Lyon v. Hancock, 36 Cal. 372; White v. Tucker, 16 Ohio St. 468; Ammer-
man v. Crosby, 26 Ind. 451; Thomas v. Bussel, 9 Ex. 764.
2 Goggans v, Monroe, 31 Ga. 331.
3 Wade V. Walden, 23 111. 425.
* Barron r. Mason, 31 Vt. 189. See Gregory i-. Thomas, 2 Bibb, 286.
n
92 INJURIE8 TO PERSONAL PROPERTY. §§ 72-3
CHAPTER VI.
INJURIES TO PERSONAL PROPERTY.
§ 72. Injuries to property.
§ 73. Injuries to personal property arising from necessity.
^ § 74. Conversion of goods, etc.
§ 75. Limited interference with chattels.
§ 76. Chattels found.
§ 77. Chattels received as .security.
§ 78. Injuries to animals.
§ 79. Hitching horses.
§ 72. Injuries to property. — Having considered in the pre-
ceding chapters the various injuries to the person, the liberty,
the health, and the reputation of individuals, with some notice
of those invasions of the relative rights of members of the
community for which the law provides no remedy, it will now
be our purpose to consider those injuries to property which are
in the same unfortunate category. We shall discuss, first, the
injuries to personal property, including the conversion of stocks
and shares in incorporated companies; and secondly, injuries
to real property, including general trespasses on real property
at common law, injuries from mining operations, and injuries to
water, surface or subterranean, and to water-courses, natural
and artificial.
§ 73. Injuries to personal property arising from neces-
sity. — ^n an action of trespass brought for a casket and one
hundred and thirteen pounds, taken and carried away, it ap-
pears that a ferry-man took forty-seven passengers into his
barge and the plaintiff was one, and the barge being upon the
water a tempest arose and a strong wind, so that the barge and
all the passengers were in danger of sinking, and a hogshead of
wine and other ponderous things had not been cast out, for the
safety of the passengers. It was concluded by the whole court
that in case of necessity for the saving of the lives of the paa-
§ 74 INJURIES TO PERSONAL PROPERTY. 98
sengers, it was lawful for the defendant, being a passenger, to
cast the casket of the plaintiff out of the barge, with the other
things in it, levandi causa. The owners, however, in 8uch a
case, might have had a remedy against the ferry-man for sur-
charging his craft. But if there was no surcharge, but the
danger accrued only by the act of God, as by tempest, there
being no fault in the owner of the vessel, " every one ought to
bear his loss for the safeguard and life of a man," as in the case
of tearing down a house to prevent the spread of a fire, etc.^
A person erected a mill-dam, part upon his own land and part
upon the land adjoining. The owner of the adjacent land
pulled down the dam upon his land, by which act the whole
dam fell down and the water ran out. The act in^as held justi-
fiable. And the same principle was applied to a wall erected
upon one's own land and the land of his neighbor, and the lat-
ter pulls down the wall upon his land, and in consequence the
whole falls. This is held lawful.^
§ 74. Conversion of goods, etc. — A broker who, acting only^
as such, negotiates a bargain of purchase and sale, and passes
a delivery order, is not thereby guilty of a conversion, so as to
be liable in an action of trover ; and in the case of a simple
asportation by him, without reference or intention as to whose
was the property in the goods, is likewise not a conversion.^ So
a mere sale of goods by a sheriff who has seized them and sold
them bona jide^ and without notice, is not a conversion.^ Al-
though conversion has been defined to be the exercising of do-
minion over property inconsistent with the title of the owner,,
yet justice, expediency, and public policy have introduced many
exceptions or qualifications to the doctrine. A carrier who
delivers a quantity of merchandise to one who receives it as
owner, and a packer who packs and prepares for shipment and
actually ships and consigns goods, exercise dominion adversely
to, and inconsistent with, the rights of the true owner ; yet for
this merely they are not liable as for conversion. In a carefully
1 Mouse's Case, 12 Bep. 63; Dyer, 36.
2 Wigford V. GiU, Cro. Eliz. 269.
« Fowler v. Hollins, L. R. 7 Q. B. 616.
* Lancashire Wagon Co. v. Fitzhugh, 6 Hurl. & N. 602. As to what is suffi-
cient conversion, see Wilbraham v. Snow, 2 Wins. Saund. 47d.
94 INJURIES TO PERSONAL PROPERTY. § 76
considered case in England in the Exchequer Chamber, in 1872,
it appeared that the plaintiffs, who were merchants in Liverpool,
sued the defendants, who were cotton brokers in the same
place, to recover the value of thirteen bales of cotton. The
cotton had been previously bought fraudulently by another
broker from the plaintiffs' brokers. The defendants bought the
same cotton from the principal of that other broker, without
any notice of any fraud, and obtained his signature to a delivery
order for it, and took delivery of it, and conveyed it to a rail-
way station, whence it was forwarded to a mill, and there spun
into yarn. The plaintiffs then demanded the cotton of the de-
fendants. The defendants acted only as brokers and agents pi
the owners o^ the mill. The question was whether the defend-
ants had been guilty of a conversion, so as to authorize the
maintenance of an action of trover. The legal nature and
character of a broker was considered at length. As the de-
fendants were regarded merely as agents for the mill-owners,
they were held not to be subject to the action.^
§ 75. Limited interference with chattels. — Where rent
was due from a vendor of the plaintiff to defendant, and the
plaintiff was in actual possession, but the defendant, who was
landlord of the house in which the goods were, said : " Rent
is due to me, and before that rent is paid I will not allow these
goods to be removed," this was held no conversion. A limited
interference with the plaintiff's property, where plaintiff is in
possession, does not constitute conversion.^ And if a man finds
stray cattle in his field he is not bound to impound them or re-
tain them for the owner, but may drive them off into the high-
way without being guilty of a conversion.^ A plaintiff carried
on the business of a mast, oar, and block-maker. The evidence
showed that certain pieces of timber or spars used for making
bowsprits, and belonging to the plaintiff, being on the defend-
ant's land, he caused them to be removed ; and, upon the timber
1 Fowler v. Hollins, L. R. 7 Q. B. 616. The judj^es, however, were not unani-
mous.
2 England v. Cowley, Law R. 8 Ex. 126; Boobierr. Boobier,. 39 Me. 406; PoUey
V. Lenox Iron Works, 2 Allen, 184; Plattner v. Johnson, 26 Miss. 142; Herron v.
Hughes, 26 Cal. 555. See Guthrie r. Jones, 108 Mass. 191 ; Crockett v. Beatty, 8
Humph. 20; Tray lor v. Horrall, 4 Blackf. 317.
s Stevens v. Curtis, 18 Pick. 227; Wilson v. McLaughlin, 107 Mass. 587.
§ 76 INJURIES TO PERSONAL PROPERTY. 96
being again placed there, and becoming imbedded in the soil,
the defendant directed his workmen to dig a saw-pit in his land,
and in so doing they cut through the timber, leaving the pieces
there, and some of them were afterward carried away by the
tides of the river, which at high water flowed over the land, the
other part remaining imbedded in the soil. This was considered
no evidence of a conversion ; there being no intention on the
part of the plaintiff to take to himself the property, or deprive
the plaintiff of it.^ Where a cow, running at large, got acci-
dentally and unknown to defendants in the latter's drove and
was driven off with the drove, this was considered no conver-
sion, as she was delivered up on the first notice that she was
plaintiff's property .^ In order to constitute a conversion there
must be an intention of the defendant to take to himself the
property in the goods, or to deprive the plaintiff of it. A
mere depositary or naked bailee cannot be guilty of a conversion
by merely receiving the goods and then returning them to the
depositor ; otherwise, an innkeeper, who receives in his stable a
stolen horse in .charge of a guest, and permits the latter to take
him away again, would be guilty of a conversion of the horse
to his own use. Especially where there was no intention to
conceal the property from the true owner, the bailee cannot be
sued in trover.^
§ 76. Chattels found. — The law does not compel a man
who finds a thing to keep it safely, as if one finds a garment
and suffers it to be moth-eaten, or*finds a horse and neglects to
give it sustenance ; but if a man finds a thing and uses it, he is
answerable for conversion, and so if he purposely misuses it ;
but'for mere negligent keeping he is not answerable.*
1 Simmons v. Lillystone, 8 Ex. 431. See Byrne v. Stout, 15 111. 180; Sanderson
V. Haverstick, 8 Pa. 294.
2 Wellington t;. Wentworth, 8 Met. 648; Van Valkenburg v. Thayer, 57 Barb.
196. See Hills v. Snell, 104 Mass. 173; Lee v. McKay, 3 Ired. 29. Contra, Piatt
r. Tuttle, 23 Conn. 233.
» Loring v. Mnlcahy, 3 Allen, 575; PoUey v. Lenox Iron Works, 2 Allen, 182.
^Mulgraver. Ogden, Cro. Eliz. 219; Tinker v. Morrill, 39 Vt. 477; Conner v.
Allen, 33 Ala. 515; Bromley v. Coxwell, 2 Bos. & P. 438; Railroad Co. v. Kidd,
7 Dana, 252; Nutt v. Wheeler, 30 Vt. 436; Abbott v. KirabaU, 19 Vt. 558; Jones
V. Allen, 1 Head. 626; Ragsdale v. Williams, 8 Ired. 498; Aukim v. Woodward,
6 Whart. 571.
96 INJURIES TO PERSONAL PROPERTY. §§ 77-8
§ 77. Chattels received as security. — In trover for the
conversion of a gun, the. defendants admitted it was the prop-
erty of the plaintiffs.. It was proved that one J S, being in-
debted to the defendants, delivered the gun to them as security
for the debt, and that afterward the plaintiffs demanded the
gun of one of the defendants. But the plaintiffs did not rely
upon the demand as evidence of the conversion, as the gun, be-
fore the demand, had been taken away by J S with the de-
fendants' consent and sold to another party. The evidence
relied on was, that the defendants consented to this sale. There
was no proof that the defendants had any knowledge of plaint-
iffs' title or the want of title of J S. The court held, on ap-
peal, that receiving the gun from the person who had the
possession and restoring it to him and taking other security, was
not a tortious act, and did not amount to conversion.^
§ 78. Injuries to animals. — In trespass for killing u mas-
tiff belonging to plaintiff, the defendant pleaded that he was
keeper of a warren, and that the dog was in the habit of killing
rabbits in the warren, and the justification was held good, Pop-
ham remarking that ^^the common use of England is to kill
dogs and cats in all warrens, as well as any vermin, which
shows that the law hath been always taken to be that they may
well kill them ; so the justification is good." ^ So where two
greyhounds chased a deer in defendant's park, and there killed
her, wherefore he killed the hounds, to prevent more mischief
by them, the act was held justifiable.^ So a plea that the dog
killed by defendant was a fierce dog, and often bit men and cat-
tle, of which the defendant had notice — that the dog came into
defendant's yard against his will, so that he was afraid to go out
of his house, of which the plaintiff had notice, and the defend-
ant desired him to keep his dog out of the yard, which the
plaintiff neglecting or refusing to do, the defendant shot the
dog in the yard, was held a good plea.* And in New York it
■ Leonard v. Tidd, 3 Met. Mass. 6; Nelson v, Iverson, 17 Ala. 216; Hill v.
Hayes, 38 Conn. 532; Parker v, Lombard, 100 Mass. 400.
3 Wadburst v. Damane, Cro. Jac. 45. But see Vere v. Lord Cawdor, 11 East,
668. See King v. Rose, Freem. 347; Morris u. Nugent, 7 Car. & P. 572.
" Harrington v. Turner, 3 Levinz, 28.
* Keck I'. Halstead, 3 Lutwyche, 481.
§ 78 INJURIES TO PERSONAL PROPETRTY. 97
was held that where a dog was on the land of the defendant, in
the act of destroying a fowl, the defendant was justified in kill-
ing him, the same as if he was chasing sheep, deer, calves, or
other useful animals : and it was further held that the fowl be-
ing on the land of tne defendant was enough, without showing
property in the fowl.^ And where it was shown that a dog was
generally a dangerous and unruly animal, and his owner knew it, *
yet permitted him to run at large, or kept him so negligently that
he escaped from confinement, the defendant was held justified in
killing him while he was running loose, especially as the animal
had been bitten a few days before by a mad dog. This in itself
w^as considered sufficient to justify any person in killing him.*
Where a dog was in the constant habit of coming on defendant's
premises and about his dwelling, both day and night, barking
and howling, to the great annoyance and disturbance of the
peace and quiet of the family, and the plaintiff was fully ad-
vised of this propensity of the animal, and willfully neglected
to confine him, and defendant, unable to remove the nuisance in
any other way, killed him, the act was considered justifiable,
and the owner could not recover. It was placed on the ground
of nuisance, where the party might take the remedy into his
own hands, like other common-law nuisances.* The act was con-
sidered essential to the free and perfect enjoyment by the defend-
ants of their property, as well as to the protection and comfort
of their families. It was alleged in a declaration that defend-
^ ants were the owners of a sow and pigs which bit, damaged,
mutilated, and mangled a certain cow and calf of the plaintiff,
while the cow was in the act of calving, so that the cow and
calf both died, to the plaintiff's damage, etc. The evidence
sustained these facts, but there was no allegation nor any evi-
dence given on the trial that swine possess natural propensities
which lead them instinctively to attack or destroy animals in the
condition of those of the plaintiff. Nor was there any allega-
1 Leonard v. Wilkins, 9 Johns. 233. See, also, Canefox v. Crenshaw, 24 Mo.
199; Morse v. Nixon, ST Jones, (N. C.) 35.
'^ Putnam r. Payne, 13 Johns. 312. See, also, Maxwell v, Palmerton, 21 Wend.
407 ; Dnnlap w. Snyder, 17 Barb. 661 ; Russell v. Barrow, 7 Porter, (Ala. ) 106. See
Woolf V. Chalker, 31 Conn. 128; Dodgon v. Mock, 4 Dev. & Bat. 146.
» Brill 17. Flagler, 23 Wend. 354; Viner Abr. Tit. Nuisance, G. & W. 3 Blackst.
Com. 6; Street v. Ingwell, Selw, N. P. 851. See, also, Brown ». Carpenter, 26 Vt.
638; Woolf v. Chalker, 81 Conn. 129.
D. A. I.— 7.
98 INJURIES TO PERSONAL PROPERTY. § 79
tion or evidence that the defendant previously knew or had
notice that their swine were accustomed to do such or similar
mischief, or that the swine broke and entered the plaintiff's
close, and there committed the mischief. There was no scienter
alleged or proved. Under these circumstances the plaintiff was
held not properly entitled to judgment.*
§ 79. Hitching horses. — Travelers have no right to hitch
horses to shade-trees. Most horses have a propensity to gnaw
whatever they are hitched to. When, therefore, the owner of
a shade-tree finds a horse hitched to it, he may immediately re-
move him to a place of safety ; and if it is done carefully and
considerately, it is not a trespass ; and if unavoidable damage
results, it is damnum absque injuria. Where a defendant found
a horse hitched to one of his shade-trees, he unhitched him and
led him a few feet and hitched him to a post, set in the ground
for the purpose of hitching horses to it. The horse afterward
got loose in some way from the post, and ran away and broke
the wagon. There was no evidence that the defendant did not
use ordinary care in hitching the horse to the post, and be was
not charged with negligence, but only trespass vi et armis in
taking away the horse and buggy. The plaintiff was nonsuited.'
1 Van Lenvin v. like, 1 N. Y. 516; S. C. 4 Denlo, 127.
3 Oilman v. Emery, 64 Me. 160. See Young v. Vaughan, 1 Horst. 331.
ChatUU annexed to realty. — If one, without license from the owner, enter and
make permanent erections on land, he cannot remove what he has unlawfully
atta<3hed (Kieman v. Hesse, 61 Gal. 694; Ewell on Fixtures, chap. 2. See Pen-
nybacker v. McDougal, 48 Cal. 160); and if any one having a right to attach a
fixture to the freehold, attach it so that it cannot be removed without serious
Injury to the realty, he must lose it, but the injury must be substantial and not
trifling. (Seeger v. Pettit, 77 Pa. 437: Avery v. Cheslyn, 3 Ad. & El. 76; Whitinj<
V. Brastow, 4 Pick. 310.) These rules, of course, can be altered by special agree-
ment. When a licensee has a right to remove fixtures, he will lose them unless
he removes them within a reasonable time, to be governed by all the circum-
stances, and so with a tenant at the expiration of his term, as to his remova-
ble fixtures. (Antoni v. Belkap, 102 Mass. 193; Ombony v. Jones, 19 N. Y. 234;
Sullivan v, Carberry, 67 Me. 631 ; Penton v. Robart, 2 East, 88; Weston v. Wood-
cock, 7 Mees. & W. 14; Lyde v. Russell, 1 Bam. & Adol. 394; Conner v. Coffin,
22 N. H. 638. See Davis t- . Eyton, 7 Bing. 154.) It must be understood, how-
ever, that whUe a structure becomes realty if affixed by the owner of the land,
it does not become a part of it when affixed by the tenant, because the difference
in ownership will prevent the merger. The tenant is supposed to keep the
ownership separate. This must necessarily be the modem doctrine. Whole
cities grow up on leased land, and substantial structures for houses, shops, etc.,
remain the tenant's property, as between him and his landlord. (Cooley on
Torts, 432, note 6. ) Laws are sometimes passed to compel a paramount claim-:
ant, upon recovering realty, to tender the value of improvements affixed by the
defendant as a condition of being put in possession.
§ 80 INJURIES TO OWNERS OF STOCK. 99
CHAPTER VII.
INJURIES TO OWNERS AND HOLDERS OF STOCK AND SHARES
IN INCORPORATED COMPANIES-CONVERSION, ETC.
$ 80. Injtules snffered by purchasers of stock.
§ 81. Technical breaches of trust.
§ 82. Injuries suffered by equitable owners of stock — conversion by pledgee.
§ 83. Sale of mining stock — fraudulent representation.
§ 84. Stock stolen.
§ 80. Injuries suflbred by purchaBers of stock. — ^The
principle that certificates of stock in a corporation are mere
evidences of the holder's title to a given share in the franchises
and property of the corporation, and tfiat such certificates are
not negotiable securities, in a commercial sense, results in the
further proposition that if a corporation issues to an owner of
shares of stock a certificate transferable on the books of the
company by indorsement and surrender of the certificate, and
he indorses the same and then loses it, and it comes into the
hands of a hona fide purchaser for value, even such a purchaser
acquires no right to the stock. This may present a case of ex-
treme hardship, and an extreme case of damnum absque injuria.
The loss to the purchaser is apparent, but there is no legal
remedy. And so in a case in California a broker owned shares
of the stock of the defendant, a corporation organized for mining
purposes^ imd received a certificate in the following language : ^
''Twenty shares. — No. 7405. — Meadow Valley Mining
CoMPANT.— Incorporated May 15th, 1869.— Capital |6,000,-
000. — 60,000 shares — $100 each. — San Francisco, November
80th, 1872. This certifies that H. Schmeidell, trustee, is the
owner of twenty (20) shares of the capital stock of the Meadow
Valley Mining Company, transferable on the books of the com-
pany by indorsement hereon and surrender of this certificate.
T. W. Colbum, Secretary. Aug. J. Bowie, Jr., Vice-Presi-
1 Sherwood v. Meadow Valley Mining Company, 50 Cal. 412.
100 INJURIES TO OWNERS OF STOCK. § 80
(lent. — Location of works: Lincoln County, Nevada. — ^Indorsed:
Henry Schmeidell, Trustee. Witness : N. K. Masten."
And it further appeared that the stock was entered on
the books of the company in the name of "Henry Schmei-
dell, trustee." On said 30th of November, Schmeidell sold
twenty shares of stock to one Levy, and indorsed* the cer-
tificate thus : " H. Schmeidell, trustee," and delivered it to
him; but no change was made on the books of the com-
pany, nor did Levy inform the company of his purchase.
On the 7th day of April, 1873, Levy lost the certificate.
On the 8th day of April, 1873, he notified the corporation
of his loss, and, having indemnified it, on the 19th of May
following, the company gave him a new certificate, a copy of
the old one. On the 7th of April, 1873, the plaintiff, who was
also a stock-broker, purchased, in the usual course of business,
twenty shares of the stock of said corporation, and H. Morri-
son, who sold the same, delivered him the certificate which
Levy had lost. Sherwood paid value, and did not know of
Levy's loss. On the 2nd day of July, 1873, Sherwood, still igno-
rant that the certificate was not good, and of Levy's loss, pre-
sented it to the corporation, and demanded a new certificate to be
issued to him. The company refused. By the custom of brokers
in San Francisco, certificates drawn as this was, and indorsed,,
pass from hand to hand by mere delivery, without any transfer
on the books of the company. The application was for a
writ of mandate to compel the corporation to issue a new cer-
tificate to the plaintiff. The lower court refused to issue the
writ, and the plaintiff appealed. The appellate court said:
"In Atkins v. Gamble, 42 Cal. 99, we held that certificates
of stock in a corporation are not negotiable securities, in a com-
mercial sense, but are mere muniments and evidences of the
holder's title to a giyen share in the property and franchises of
the corporation of which he is a member. We do not think
it necessary to again go over the reasoning, or engage in a re-
view of the authorities by which the conclusion is maintained.
Mr. Parsons, in a note to the sixth edition of his work on Con-
tracts, (Vol. 1, p. 290) after a somewhat extended citation of
the authorities upon the general subject, says : ^ The result
would seem to be that all corporation bonds and government
§ 80 INJURIES TO OWNERS OF STOCK. 101
stocks, which pass by delivery, or indorsement with delivery,
are negotiable ; but that certificates of stock in a corporation
are not.'
" The question underwent an exhaustive consideration by the
Court of Appeals of the State of New York, in the year 1866,
in Mechanics' Bank v. N. Y. & N. H. R. R. Co. 3 Kernan,
599, and the opinion of the court, delivered by Justice Com-
stock, contains a masterly exposition of the principles of law,
and a citation and comparison of the judicial decisions appli-
cable to the question. We are of opinion that, upon the agreed
facts of the case, the judgment of the court below was correctly
entered in favor of the defendants," and the judgment was
affirmed.^
^ It has been decided in another case in California that if the owner of shares
of the capital stock of a mining corporation organized under the la^ of the
State, causes them to be transferred on the books of the company to another, to
whom a certiiicate is issued in due form, and tliat other thereupon indorses the
certificate in blank and delivers to the original owner, from whom, while so in-
dorsed in blank, and the indorser in blank still standing on the books of the
company as the registered owner, the certificate is subsequently stolen by the
indorser in blank, who puts it on the market, and it is purchased in the usual
course of business in good faith, and without notice by a third person, the pur-
chaser acquires a valid title to the stock as against the original owner. What-
ever may have been the rights of the bonajide purchaser who was not a party to
the action, another element entered into the case. The suit was by the original
owner against the corporation, not the purchaser, and the record showed that,
discovering his loss after these shares were sold, and before any transfer on the
books was claimed by any other party, plaintiff requested defendant to issue to
him the corresponding certificates of said stock, which defendant refused, but
issued the certificates to other parties who had purchased the stolen certificates.
Plaintiff, also, at the same time, notified defendant of the theft. Upon the trial
of the cause, a jury being waived, the court rendered judgment for plaintiff for
the value of the stock, $1,200, with interest and costs, from which defendant
appealed. But notwithstanding these facts the judgment was reversed and the
oanse remanded. It is proper to add that the appellate court but about a year
previously had decided the other way in the same case. The ground of chan^
ing their opinion on rehearing was stated to be that it had been decided that a
purchaser in goo4 faith, and without notice under an attachment levied on stock
in a corporation, as the property of the registered owner, acquired a good title
as against a prior pledgee or purchaser of the certificate; and a purchaser at
private sale in good faith, and without notice, in the usual course of business, of
a certificate issued to the registered owner, and duly indorsed by him, ought,
they thought, to stand upon as favorable a footing. (Winter v. Belmont Mining
Company — Supreme Court of California, Jan. ISth, 1879— overruling decision in
Same Case, Oct. 9th, 1877— Pacific Law Reporter, Jan. 20th, 1879— both, decisions
unreported. See, also, Sherwood v. Meadow Valley Mining Company, 60 CaL
412; Thompson v. Toland, 48 Cal. 112; Brewster r. Sime, 42 Cal. 139; People v.
Elmore, 35 Cal. 655; Naglee r. Pacific Wharf Co. 20 Cal. 533; Brewster v. Sime,
102 INJURIES TO OWNERS OF STOCK. § 80
•
42 Gal. 139.) The case referred to by the court in their last opinion in the case
of Winter v. Belmont Mining Company was the case of Weston v. Bear River
and Auburn Water and Mining Company, 6 Cal. 425. In that case the court
passed upon the provisions of the California Corporation Acts of 1860 and 1853,
substantially the same as sec. 324 of the Civil Code of that State, which provides
that when the capital stock of a corporation is divided into shares, and certifi-
cates therefor are issued, such shares of stock are personal property, " and may
be transferred by indorsement by the signature of the proprietor or his attorney
or legal representative, and delivery of the certificate ; but such transfer is not
valid except between the parties thereto until the same is so entered on the
books of the corporation as to show the names of the parties by and to whom
transferred, the number or designation of the shares, and the date of the trans-
fer." In construing similar provisions in the Weston case the court said: ** A
party who purchases at sheriff's sale stocks of an incorporation, knowing that
the certificates of such stock have been previously hypothecated, is chargeable
with notice of such fact, and tAkes subject to the claim of the pledgee. Neither
the incorporation law of 1850 or 1863 was intended to cover a case of this kind, but
they apply only to transfers and purchases in good faith without notice." It was
therefore decided that the plaintiff was not entitled to equitable relief, and the
judgment was reversed. The court reached this conclusion on the theory that
the statutes regulating the transfer of certificates of stock in a private corpora-
tion imparted to the certificates, as between third persons, the character of nego-
tiable iiTstrumenta. The effect of the decision was considered to be that if the
certificates had been hypothecated before the attachment lien accrued, and if
the purchaser at execution sale took with notice of the prior hypothecation, he
acquired no rights as against the pledgee. The reverse of the proposition was
considered to be true, and if he had purchased without notice, his title would
have prevailed as against the pledgee. In other words, that the statute had
placed the certificates in so far on the footing of negotiable instruments that if
they had been hypothecated before the attachment lien accrued, nevertheless,
if the purchaser at the sheriff's sale, to enforce the lien, had purchased without
notice of the hypothecation, he would have acquired a valid title as against the
pledgee. (Weston v. Bear River and Auburn W. & M. Co. 6 Cal. 425; S. C. 5
Cal. 185; Naglee v. Pacific Wharf Co. 20 Cal. 633; People v. Elmore, 35 Cal. 655.)
In the Weston ca.se the action was a bill in equity, alleging that the plaintiff
purchased at execution sale certain shares of the capital stock of the defendant
corporation which stood on the books of the corporation in the name of Lovell,
the defendant in the execution. It was further alleged that the defendant Swift
had possession of some, and the defendants Reese & Buckingham of others of
the certificates, which they refused to surrender, and the prayer of the complaint
was for a decree to compel the surrender of the certificates, and that the corpor-
ation issue new certificates to the plaintiff. It appeared from the answers that
the certificates held by Swift had been hypothecated to him, and those held by
Reese & Buckingham had been sold to them before any lien had attached
thereon in the suit in which the execution issued under which the plaintiff pur*
chased, and that when he purchased he had notice of such sale and hypotheca-
tion: and further, that the certificates held by Reese & Buckingham had been
surrendered, and new certificates issued to them. The court below found the
facts to be as alleged in the complaint and answers, and entered a decree for the
plaintiff, which was reversed on appeal. (Weston v. Bear River and Auburn
W. & M. Co. 6 Cal. 425; S. C. 5 Cal. 185; People v. Elmore, 35 Cal. 655; Naglee v.
Company, 20 Cal. 533.) In tlie last opinion in Winter v. Belmont Mining Com-
pany the court, without referring to its former opinion in the same case, say
that in the case of Sherwood t\ Meadow Valley Mining Company, cited in that
§ 81 INJURIES TO OWNERS OF STOCK. 103
§ 81. Technical breaches of trust. — The doctrine of
damnum "ahsqiie injuria is applied to cases of technical wrongs
and technical breaches of trust, as in the case of conversion or
opinion, and reviewed in the text of this chapter, '^onr attention was not called
to the foregoing decisions, nor to the statute regulating the transfer of stocks in
private corporations. Without referring to these decisions, or to the statute on
which they were founded, counsel in the Sherwood case discussed the sole prop-
osition whether a certificate of this character, on general principles of commer-
cial law, was negotiable in the sense in which bills of exchange and other
similar instruments are negotiable, and we held they were not, which was the
only point decided in that case." In the first case of Winter v. Belmont Mining
Company (Oct. 9th, 1877 — unreported) the court stated the case as follows:
The plaintiff, being the owner of certain shares of the capital stock of the
defendant, cau.Hed them to be transferred upo'n the books of the company to
'* W. R. Maurice, Trustee," and certificates were issued accordingly, and after-
wards Maurice indorsed them in blank and delivered them to the plaintiff.
They were subsequently stolen from the plaintiff by Maurice, and were by him
sold and delivered to third persons, Vho purchased the .same without notice that
Maurice was not the owner thereof. Before the stock was transferred on the
books of the corporation to the purchasers from Maurice, the plaintiff notified
the corporation of his loss of the stock, and demanded the issue to him of new
certificates in the place of those which had been destroyed, and tendered a bond
of indemnity, but the corporation refused to issue new certificates to tlie plaint-
iff. Upon this state of facts the court said that " in Brewster r. Sime, 42 Cal.
139, and Thompson v. Toland, 48 Cal. S)9, it was held that the owners of the stock
must bear the loss because they had placed the legal title and possession of the
certificates in a third person, and thus enabled liim to appear to be the real
owner of the stock, and thereby to practice a fraud upon innocent purchasers.
In this case neither the title to the stock nor the possession of the certificates
was intrusted to Maurice, but the plaintiff held the certificates as he would have
held those issued to and indorsed in blank by any other person; and a failure on
his part to change the blank to a special indorsement, or to cause the stock to
be transferred on the books of the company, does not constitute such negligence
as will require him to bear the loss of the stock. *The case comes within the
principles announced in Sherwood r. Meadow Valley Mining Company, 50 Cal.
412, that certificates of stock in a corporation are not negotiable in a commercial
sense, and that the title to the stock cannot be transferred by a person who
fraudulently obtains possession of the certificates from the owner." Independ-
ent of local statute, the author has allowed the case of Sherwood v. Meadow
Valley Mining Company, 50 Cal. 412, to remain in the text as the general law of
the subject-matter, especially as, to use the language of the court in that case,
" Mr. Parsons, in a note to the sixth edition of his work on Contracts, (vol. 1, p.
290) after a somewhat extended citation of the authorities upon the general sub-
ject, says: * The result would seem to be that all corporation bonds and govern-
ment stocks which pass by delivery, or indorsement with delivery, are negotia-
ble; but that certificates of stock in a corporation are not.' The question
underwent an exhaustive consideration by the Court of Appeals of the State of
New York, in the year 1856, in Mechanics' Bank v. N. Y. & N, H. R. R. Co. 3
Kern. 509, and the opinion of the court, delivered by Justice Comstock, contains
a masterly exposition of the principles of law, and a citation and comparison of
the judicial decisions applicable to the question." (See, also, Bercich r. Marye,
9Nev. 312.)
104 INJURIES TO OWNERS OF STOCK. § 81
sale of identical shares of mining stock. Shares of stock in a
corporation stand upon a different footing from other personal
property, as regards the right to the recovery of the specific
property, because they are mere evidences of interest in the
business of the corporation ; and if all the shares are of equal
value, there can be no reason for preferring one share to another.
And so, where a bailee of mining stock is at all times ready,
able, and willing to transfer to the bailor the same number of
shares of similar stock of equal value, and of the same com-
pany, the sale or conversion of the identical shares pledged
only constitutes a technical breach of trust, and presents a case
of damnum absque injuria in the sense that there is a technical
wrong, but no actual injury, and nothing for which the law
need afford any remedy. This doctrine is illustrated in a care-
fully considered case in California.* In that case it appeared
that as to some of the shares in question, the only testimony
concerning the sale of them by the defendant was to the effect
that the defendant, (the bailee) being the owner in his own
right of a large amount of the stock of the company, ordered
his broker to sell a portion of it ; that the broker contracted to
sell twenty or more shares, and, in performing the contract of
sale, the defendant, who was president of the company, deliv-
ered to the purchaser ten shares of the plaintiff's stock ; that in
so dealino^ with these shares the defendant delivered them as
his own, and not as the property of the plaintiff ; that the sale
was intended bv the defendant to be of his own stocks and not
the plaintiff's ; and that the defendant, during the whole time,
held in his own name more than enough of the stock of the
company to replace the ten shares of the plaintiff.
The argument of the counsel for the plaintiff on this branch
of the case was, that inasmuch as the defendant sold these ten
shares without the authority of the plaintiff, and against his
orders, it was a wrongful conversion of the stock by the de-
fendant to his own use ; that it was optional with the plaintiff
whether he would repudiate the sale and hold the defendant for
the market value of the stock, or, waiving the wrongful conver-
sion, ratify the sale and demand the proceeds. Upon these
1 Atkins V. Gamble, 42 Cal. 86. It would perliaps be more correct to flay that
it was injuria sine damnOj but the court uses the terms as convertible.
§ 81 INJURIES TO OWNERS OF STOCK. 105
propositions the court said : ^^ There can be no doubt as to the
general proposition that, if the bailee of personal property sell
it in violation of his authority, the owner may ratify the trans-
action and demand the proceeds of the sale. If A intrust to B
a steamboat, for sale at a limited price, and if B, in violation of
his duty, sell it for a less price, A may acquiesce in the sale and
demand the proceeds. This proposition needs no argument or
citation of authorities to sustain it. It would not be at the
option of the baUee whether he would account for the proceeds
or deliver another steamboat of equal value ; nor would it be
any defense for him to say that he, at all times, had and held
another steamboat of equal value, which he was ready to deliver
in place of the first. If certificates of stock in mining corpora-
tions are to be treated in this respect as other personal property,
it is evident the defendant became liable to the plaintiff for the
proceeds of the ten shares sold. But we think such certificates
stand upon a different footing. Whilst stock in corporations is
denominated personal property, and is subject to seizure and
sale under execution, and whilst a particular certificate may be
capable of complete identification, by its numbers or otherwise,
the certificate is but the evidence that the holder of it is entitled
to an undivided share in the assets and business of the corpora-
tion. The stockholders are the joint owners of the franchise
and property of the corporation, each being entitled to an undi-
vided share thereof, and the only office of the certificate is to
furnish the evidence of the quantum of interest held by the
owner of the certificate. ' Certificates of stock are not securi-
ties for money in any sense ; much less are they negotiable se-
curities. They are simply the muniments and evidence of the
holder's title to a given share in the property and franchises of
the corporation of which he is a member.' (Mechanics' Bank
V, New York & New Haven R. R. Co. 13 N. Y. R. 626.) If
a firm, doing business as an ordinary partnership, issue certifi-
cates to each of its members, specifying the interests of the
respective copartners, such certificates would have no intrinsic
value, except as evidence of the quantum of interest of each
copartner. The joint interest of the copartner in the property
and business of the firm is the substance, of the existence of
which the certificate is but the evidence. If, for example.
106 INJURIES TO OWNERS OF STOCK. § 81
there be three copartners, each owning an undivided interest
of one-third, there Is no appreciable difference between the
respective interests. They are in all respects precisely similar,
and each several interest is an exact duplicate of the others.
The same principle is applicable to corporations. The holder of
ten shares of stock stands precisely upon the same footing as any
other holder of ten shares. Their interests are precisely similar/
and of the same value, and each holds but an undivided interest
in the common property. This proposition is not new in this
court, and is substantially decided in Hawley v, Brummagim,
83 Cal. 894 ; Hardenburgh v. Bacon, 83 Cal. 856.
" The general rule is, as we have stated, that the owner of per-
sonal property which has been wrongfully converted is entitled
to recover his specific property or its value, and cannot be com-
pelled to accej)t other property of the same kind and of equal
value, in lieu of that which was converted. The reason of the
rule is obvious. The owner may have special reasons for desiring
to retain that specific chattel ; and there may be reasons why
he attached a peculiar value to it beyond the value of other
chattels of a precisely similar kind. If his desire in this re-
spect be the result of mere caprice, he is entitled to be gratified
in the exercise of it. Visible, tangible chattels may have se-
cret defects which no vigilance could detect. If two visible
objects be apparently precisely similar, one may have infirmities
not discoverable on inspection, which would impair or destroy
its value. Hence the owner of such chattel cannot be compelled
to accept in lieu of it another which appears to be precisely sim-
ilar and of equal value. He cannot be required to take the
risk of secret defects in the substituted article. Other consid-
erations, also, affect the general rule. If a favorite horse, a pet
dog, or a family picture be converted by a wrong-doer, he could
not escape responsibility by offering another horse, dog, or pic-
ture, even of greater value.
^^ But we think the reason of the rule ceases when applied to
stocks. It is impossible that any sane person should have cen-
tered his affections upon a particular stock certificate, or that
any violence could be done to his feelings by requiring him to
accept another certificate, of precisely similar cjiaracter, in lieu
of it. His own certificate was only the evidence that he owned
§ 81 INJURIES TO OWNERS OF STOCK. 107
an undivided interest in the capital and business of the corpora-
tion. Another certificate of the same kind, for the same amount
of stock, would entitle him to precisely the same rights as the
former certificate. Each would be a precise equivalent of the
other, and it is certain he could suffer no pecuniary loss by the
transaction ; whilst the nature of the property, or rather of his
interest in it, forbids the idea that it could be the object of per-
sonal attachment, or have a peculiar value in his estimation as
contradistinguished from any other equal number of shares in
the same company. For these reasons, we think, a different
rule should govern the conversion of a certificate of stock ; and
if the wrongdoer was at all times ready and willing to transfer
to the owner an equivalent number of similar shares in the same
company, by a proper and valid certificate, it would present a
case for nominal dama<Tes onlv."
Cases apparently in conflict with these views rest upon differ-
ent principles. Thus, Wilson v. Little, 2 Comst. 443, was an ac-
tion to recover the value of fifty shares of New York and Erie
Railroad stock, deposited with the defendant as collateral security
to secure the payment of a promissory note, with authority to
sell the stock on non-payment of the note. The defendant sold
the stock before maturity of the note, and the plaintiff afterward
tendered payment and demanded a return of the stock. It ap-
pears that the company had two kinds of stock, for which it had
issued certificates ; one termed the " consolidated," and the other
the " converted," which had different values in the market, the
former being the most valuable. The stock which was pledged
was the "consolidated," and the defendant offered to return
*' converted" stock in lieu of that which he sold. The court
very properly held that the plaintiff was under no obligation to
accept a different kind of stock from that which was pledged.
In discussing this branch of the case, the court say : " The
defendants were bound to restore the identical stock pledged."
And in another part of the opinion : " Although the plaintiff
was strictly entitled to a retransfer of the same shares which
were pledged, it appears that his broker was willing to receive
other stock of the same description and value," etc. In the
first paragraph quoted we understand the court to refer to
*' consolidated " as contradistinguished from converted stock ;
108 INJURIES TO OWNERS OF STOCK. § 81
but if it be conceded that in strict law the plaintiff was entitled
to a re transfer of the same identical shares which were pledged,
it by no means follows that he was entitled to any but nominal
damages, if the defendant was at all times ready and wUling to
transfer to him an equal number of shftres of the same kind of
stock with that which was pledged.
Brookman v. Rothschild, 8 Simmons, 6 Eng. Ch. 153, was a
bill in chancery to set aside certain transactions in stocks on the
ground of fraud. The defendant was the plaintiff^s agent, and
rendered accounts showing large transactions in stocks for the
plaintiff's account. It appeared on the trial that the stocks
stood in the name of the defendant, and were never in any man-
ner appropriated or set apart to the plaintiff. The court held
that the stocks never became the property of the plaintiff, and
he was therefore not liable for losses incurred by their sale.
Seymour v. Wickoff, 6 Seld. 213, was an action to recover
the value of a quantity of pork in barrels, left with the defend-
ants as commission merchants, for sale, and which was sold at
ten dollars per barrel ; but the plaintiff was not advised of the
sale, and afterward, on discovering it, brought an action for the
proceeds. The defense attempted to be set up was, that the
pork in question was only a portion of a much larger quantity
belonging to the defendant, or consigned to him by others, and
which had the same inspection brand, and was stored in the
same warehouse, by reason of which it had lost its identity, like
wheat mixed in a bin, and that so long as the defendant had on
hand an equal quantity of pork of the same brand, he might
apply the plaintiff's ownership to that parcel, and sell it on his
account. This defense was held to be insufficient, as it mani-
festly was. But there is no analogy between pork in barrels,
capable of complete identification, and having peculiar quali-
ties, on which its value depends, and certificates of stock, hav-
ing no value over other similar certificates of the same stock.
In Ford v. Hopkins, 1 Salk. 283, the plaintiff had delivered
certain lottery tickets to a goldsmith to collect the money due
on them. The goldsmith, having received of the defendant
other tickets in the same lottery, and given his note for them,
took up his note by delivering the plaintiff 's tickets to the de-
fendant. The court held that the goldsmith had no authority.
§ 81 INJURIES TO OWNERS OF STOCK. 109
'•I
except to receive the money due on the tickets, and had no
power to sell them or exchange them for other tickets ; conse-
quently no title passed to the defendant.
Nourse v. Prime, 4 John. Ch. R. 496, and which was more
fully considered in 7 John. Ch. R. 69, is, in some respects, very
similar to the case of Atkins v. Gamble, in California. The
defendants were stockbrokers, and had purchased for the plaint-
iff 430 shares of United States Bank stock, and taken a trans-
fer of the stock in their own names. The plaintiff, having be-
come largely indebted to the defendants, executed his promis-
sory note to them for the amount, and agreed that they should
hold the bank stock as collateral security ; and the defendants
thereupon executed and delivered to the plaintiff a writing, ac-
knowledging tKat they held the stock as security for the note,
and promising, on payment of the note, to "retransfer" the
stock and account for the dividends ; but in case the note was
not duly paid, the defendants were to be at liberty to sell the
stock, accounting to the plaintiff for the surplus, if any.
The defendants ultimately sold the stock at a depreciated
price, which was not sufficient to pay the debt, and brought an
action at law against the plaintiff for the deficiency. The
plaintiff then filed this bill in equity, to enjoin the action at law,
on the ground that the defendants were large operators in stocks,
and had mingled his stock with their own and other stocks,
which they held in trust, in such manner that they could not be
distinguished ; that it was the duty of the defendants to have
set apart the plaintiff's shares in such manner that they could
be identified, and not having done so, they were liable for the
highest price lit which the stock could have been sold.
The defendants relied for their defense on the fact that the
plaintiff had never requested them to set apart any particular
430 shares, and that the custom was for brokers to keep all
stocks of which they had control in their own names, not dis-
tinguishing one parcel from another ; and that they at all times
had enough of the stock of the United States Bank under their
control to have replaced the plaintiff's stock, and were at all
times ready and willing to do so on payment of the note. Chan-
cellor Kent, in delivering his opinion in the case, puts it upon
the ground that under the contract all that the plaintiff could
110 IXJUKIES TO OWNERS OF STOCK. § 81
demand was a return of 430 shares of the stock of the bank,
and if he desired to have any specific 430 shares, he should
have 80 provided in the contract. He quotes, with appro-
bation, the case of Le Croy v. Eastman, 10 Mod. R. 499, as
follows :
^^ Here* the defendant held £990 in South Sea stock, in trust
for the plaintiff. The stock stood in his name, and he gave a
note declaring the trust. Five hundred pounds of it was after-
, ward transferred to the plaintiff, and a bill was filed, for aa ac-
count for the residue, at the then price of stodi. The defend-
ant admitted in his answer that be had mortgaged £1,000 of
stock, and sold out all the stock in his own name, except eighty
pounds ; but he had more than enough in another person's name
to have answered the trust, if the plaintiff had Insisted upon a
transfer ; and he offered the residue of stock due to the plaint-
iff, amounting to £490, with the dividends. Lord Chancellor
Parker held that the defendant was accountable only for the
stock and dividends, and not for the price at which the stock
was held. He observed that, as £100 South Sea stock was not
to be 'specificated' from another, equity will never adjudge a
man to have broken his trust in a higher degree when he may,
with equal reason, be admitted to have broken it in a lower, and
that the stock mortgaged must be esteemed the stock of the
plaintiff, and the stock sold that of the defendant." ^
After reviewing the above authorities, the California Court,
in Atkins v. Gamble,* further remarked: "But,- in all these
cases, the stock stood in the name of the bailee, and it is claimed
that the cases turned chiefly on this fact, and on the course of,
dealing between the parties, which established an implied agree-
ment that the bailee might use the stocks as his own, and re-
place them with other similar stocks. But we do not so under-
stand the cases ; nor do we perceive any difference in principle
between stocks standing in the name of the bailee and those
standing in the name of the bailor, who has delivered to the
bailee his certificates properly indorsed, and thereby placed it
1 The cases of Horton t;. Morgan, 4 Duer. 66, affirmed in 19 N. Y. 172, Oilpin v.
Howell, 6 Penn. St. 42, *and Allen v. Dykers, 3 Hill, 593, sustain the general
proposition decided in Nourse v. Prime.
S42Cal. S6.
§ 82 CONVERSION. Ill
in the power of the bailee to transfer them into his own name
at any time.
" We hold, therefore, both upon reason and authority, that by
the delivery to Martin (the purchaser) of ten shares of the
plaintiff's stock, the defendant, on the facts proved and found,
did not become responsible to the plaintiff for the proceeds of
the sale. * * * The defendant was, at all times, able and
ready and willing to transfer to the plaintiff the same number
of shares of similar stock of the same company, and which had
precisely the same value ; and it is evident that if the defend-
ant, in these transactions, committed a technical breach of his
trust, it presents a case of damnum absque injuria.
*"*• It is a good defense, or rather a good excuse, that the mis-
conduct of the agent has been followed by no loss or damage
whatever to the principal ; for then the rule applies that, al-
though there is a wrong, yet it is without any damage, and to
maintain an action both must occur, for damnum absque injuria
and injuria absque damnum are in general equally objections to
any recovery." ^ If the shares are not the equivalents of each
other, the rule is undoubtedly different.
§ 82. Injuries Buffered by equitable owner of stock —
Conversion by pledgee. — This matter was very fully consid-
ered in a case in California.^ It was an action to recover the
value of mining stock alleged to have been converted by the
defendants ; one T having hypothecated 500 shares of the stock
of the company with defendants, as collateral security for a
debt. At this time, of these shares, the ones referred to stood
on the books of the company in T's name as " trustee," but be-
longed, in fact, to the plaintiff. It was found, as a fact, that T
pledged to the defendants the stock in controversy as collateral
security for the loan, and that defendants had no actual notice
that the stock belonged to the plaintiff, and not to T. The
question arose whether the fact that the stock stood on the
books of the corporation in the name of T, " trustee^^^ was suffi-
cient to put the defendants upon inquiry as to the plaintiff's
title, and operated as constructive notice of his equitable rights.
1 Btory on Agency, Bee. 236. > Brewster v. Sime, 42 Oal. ISO.
112 CONVERSION. § 82
It was a common practice in California to transfer stocks into
the name of some person as " trustee," for the sole purpose of
concealing the name of the real owner, whose transactions in
buying or selling a particular stock, if his name were known,
might operate to enhance or depress its market value. To avoid
this result, and sometimes with a view to escape assessments
upon stocks of doubtful value, or to protect his credit from the
damage to which it might be exposed if it were known that he
was a large operator, the owner resorted to the device of causing
the stock to be transferred into the name of some other person
as *' trustee." In such cases the trustee was a mere man of
straw, having no interest in the stock, nor any trust to perform,
except to manage and dispose of it as the owner should direct.
It was thought that considerations of public policy and com-
mon justice demanded that when stock was placed in the name
of a "trustee" under these circumstances, the secret owner
should be bound by the acts of his *' trustee " dealing with per-
sons who had no actual notice of the relations between the par-
ties ; and therefore, where nothing appeared on the books of the
corporation, or on the face of the certificate, to indicate the trust
and its nature, except the mere addition to the name of the word
" trustee," the owner, it was held, had clothed his agent with the
legal title, one of the highest indicia of ownership, and should
bear the consequences resulting from the acts of the agent rather
than an innocent person, who had advanced his money on the
faith that the agent was the real owner, or at least had authority
to sell or hypothecate the stock. While it was not denied that
words might be inserted in a certificate which would so clearly
indicate a trust and its nature as to limit the power of a trustee,
and operate as constructive notice of the equities of the cestui
que trusty it was held that the mere addition of the word " trus-
tee " after the name in the certificate was not, in California, of
itself, constructive notice of the equities of a secret owner of the
stock, especially against persons who in good faith purchased or
advanced money on the stock without notice. Where the legal
tide and apparent right of disposition is vested in a person
upon some secret trust, which restricts the powers of the " trus-
tee " as between the parties, nevertheless, the rights of purchas-
ers, pledgees, and mortgagees, in good faith, for a valuable
§ 82 CONVERSION. 113
consideration paid at the time, and without notice, are unaf-
fected by the trust.
In the case under consideration, it also appeared that the
plaintiff had, when about to absent himself from the country,
indorsed the certificates, so that they could be transferred in his
absence, and deposited them with the ^^ trustee " for sale, know-
ing that he thereby enabled him to transfer the legal title and
apparent ownership into his own name, and placed him in a po-
sition to represent the stock as its true owner. This was some-
thing more than mere delivery of possession, which ought not
to be sufficient alone to bind the owner. The plaintiff, there-
fore, haying clothed the ^^ trustee" with the usual indicia of
ownership and right of disposal, was held bound by the disposi-
tion of it to one who had acquired it without notice, for a valu-
able consideration, on the faith of such indicia.^
In the case of Thompson v. Toland, 48 Cal. 99, it appeared
that certain parties were brokers, and engaged in buying mining
stocks on commission for others, and when they loaned a por-
tion of the money to make a purchase, were in the habit of
keeping the stock purchased as their security. A person em-
ployed them as his brokers, to buy mining stocks, and entered
into a contract with them, evidenced by a letter, signed by the
brokers, specifying the conditions on which the business rela-
tions were to be conducted. Under the agreement, the brokers
bought mining stock for the principal when he directed, furnish-
ing a portion of the money, and kept in their possession the
stocks purchased.
The certificates were issued to several persons by different
mining corporations. Subsequently, the brokers failed. They
had stock in their hands belonging to their employers, and pur-
chased for him, and the employer's note for the balance he owed
them. To secure some of their creditors, they assigned to them
the stock so purchased, by filling up the blank indorsements on
the back of the certificates, and delivered them with the note to
1 Brewster v. Sime, 42 Cal. 139 ; Bridenbecker v. Lowell, 32 Barb. 17 ; 4 Barb.
373; 2 Kent's Com. 621; Saltus v. Everett, 20 Wend. 278, 280; Com. Bank v. Eort-
right. 22 Wend. 361 ; Story, Agency, sees. 83, 94, 228; W. T. Co. o. Marshall, 37
Barb. 609. See Sieira Nevada Mining Co. v. Sears, 10 Nev. 346 ; Crocker o.
Crocker, 31 N. Y. 607 ; Fatman v. Lobach, 1 Duer, 364 ; Bank v. K. E. Bank, 11
How. 240; Shaw v. Spencer, 100 Mass. 382.
D. A. L— 8.
114 CONVERSION. § 82
thoBe creditors. Before this assignment, the creditors were in-
formed that the debtors had pledged the stock to third parties
as security for a loan, and to obtain the stock the creditors al-
lowed the brokers to draw a check on their bank for the amount
due, which they certified, and with this check this debt was
paid off, and the stock delivered to the creditors. The owner
of the stocks then called on the creditors, and asked to see the
stocks. They were shown him, when he informed them that
the stocks were bought for him. The creditors declined to
recognize him. The certificates stood, for the most part, in
the names of various persons, and were by them indorsed, and
none of them indicated on their face that any person other than
the possessor was the owner.
The reasoning of Brewster v. Sime, 42 Cal. 139, was applied
to this case, and the certificates being properly indorsed to the
creditors by the brokers so as to pass by delivery, and the cred-
itors having taken without notice of the secret equities of the
broker's principal, the transaction between the brokers and the
creditors to whom they transferred the stock, was treated, for
the purposes of the action, as though the brokers had the abso-
lute right as against the employer to pledge the stocks when
they were hypothecated.
The further question being raised that the creditors had no
right as pledgees to sell the stocks and convert them without a
previous demand and notice, it was held that this was purely a
question between the assignors or brokers and the assignees or
creditors, and that the original employer of the brokers was
virtually a stranger to the transaction, and could not be heard
to question it, especially as the debt for which the stocks were
pledged had not been paid nor tendered.
On petition for rehearing, it was further held that in an action
by a pledgee against a stranger for the conversion of the pledge,
the plaintiff is entitled to recover the full value of the goods, be-
cause he is answerable over to the pledgor for the surplus. But
if the goods be converted by the owner, or by any one acting in
privity with him, the pledgee can recover only the value of his
special interest in the pledge.^
^ TreadweU v, Davis, 34 Cal. 606; Story on Bailments, sec. 352; Lyle v. Barber,
5 Bin. 467; Heyden & Smith's Case, 6 Coke, 486; IngersoU v. Bokkelen, 7 Cow.
§ 88 CONVERSION. 115
§ 83. Sale of mining stock — Fraudulent representa-
tions — Rescission. — Notes were given in part payment of a
certain number of shares of stock in a mining company. It ap-
peared that the purchaser of the shares and maker of the notes
had never visited the mine. Suit was commenced on the notes.
The defense was, that the purchaser was induced to buy by the
false and fraudulent representation of the plaintiff as to the value
of the mines owned by the company issuing the stock.
There was no attempt on the part of the defendant at rescis-
sion before the trial of the cause. It was held that, if it were
necessary to rescind the contract and return the property, a sur-
render of the stock to be delivered to the plaintiff, made after
verdict and judgment upon requirement of the court as a con-
dition of denying a new trial, was not in time. Cases to the
contrary are cases where a party, upon fraudulent representa-
tion as to his pecuniary condition, has induced other parties to
sell him goods on credit, giving his own note therefor. The
vendor in such cases, upon discovering the fraud, may bring
trover or replevin without first surrendering the note. But he
must be prepared to surrender it on the trial. But' where the
vendee gives the note of a third party upon a fraudulent repre-
sentation as to the responsibility of the maker, the vendor must
return the note to the vendee before suing, for the delay may
result in injury to the vendee.^ But where there was no aver-
ment and no evidence of rescission or tender, and virtually no
averment that the stock was of no value, the defense as to
fraudulent misrepresentations was held insufficient to a suit on
the notes given in payment thereof. A finding that a mine is
of no value whatever is not a finding that the stock is valueless.
The general rule is that, until rescission of the sale and return
of the stock, the fraudulent representations constitute no defense
to an action on notes given in payment.^
The cases state the rule as above when the property is of the
slightest value to any one. When the article is absolutely value-
670; Pomeroy v. Smith, 17 Pick. S5. See, generally, as to pledges of stock,
Brewster v. Hartley, 37 Cal. 10.
1 3 Greenl. Me. 33, note.
s Gilford v. Garvill, 29 Cal. 689; Herrin v, libbey, 36 Me. 357; Burton v. Stew-
art, 3 Wend. 239 ; Kimball v, Cunningham, 4 Mass. 602 ; Norton v. Young, 3
Greenl. 32; Campbell v, Fleming, 1 Ad. & E. 40.
116 CONVERSION. § 84
less, it is unnecessary to return it. This is on the ground that
an article absolutely without any value is not the subject of a
contract — that it cannot afford any consideration for a promise,
and the contract is nudum pactum — absolutely void ab initio^
for want of a consideration to support it. But it is not enough
that it may be without value to the defendant. If it is or may
be of any value to either party, or if the detention would pro-
duce any loss or injury to the other party, the contract must be
rescinded, and the property returned within a reasonable time
after the discovery of the fraud.^
§ 84. Stock stolen. — ^In a case in Nevada, shares of stock
were stolen from the plaintiff, they having been transferred in
blank. The defendant was a broker engaged in buying and
selling mining stock. He received the certificates in the usual
course of business from a stranger, sold them upon commission,
and paid him the proceeds. The action was for restitution or
value. It was held first that the stock was not negotiable paper.^
And in answer to the defense that defendant was an innocent
agent of the person from whom he received the shares of stock,
without knowledge of the felony, and no judgment should have
been rendered against him, it was considered to be well settled
that agency is no defense to an action of trover, and that if the
principal is a wrong-doer, the agent is a wrong-doer also. A
person is guilty of a conversion who sells the property of an-
other without authority from the owner, notwithstanding he
acts under the authority of one claiming to be the owner, and is
ignorant of such person's want of title.^
1 Gifford t7. Caryill, 29 Cal. 593; Norton v. Young, 3 GreenL 33; Conner v. Hen-
derson, 16 Mass. 321; Perley v. Balch, 23 Pick. 285; Ghitty on Cont. 276, 402, 636,
665 ; Hunt v. Silk, 5 East, 449 ; Conner v. Henderson, 6 Mass. 314 ; Shepherd v.
Temple, 3 N. H. 457 ; Carter v. Walker, 2 Rich. 40 ; Christy v. Cammins, 8
McLean, 386. See, also, as to false representations, Ellis v. Schmoeck, 5 Bing.
521; Jennings v. Broughton, 22 L. J. Ch. N. S. 583; Bedford v. Bagshaw, 4 Hurl.
& K. 538; Lead M. Co. v. Baynes, L. R. 2 Ex. 324.
> See Atkins V. Gamble, and Sherwood v. Meadow Valley Minings Co.; Shaw
V. Spencer, 100 Mass. 382; Mechanics' Bank v. N. Y. & K. H. R. B. Co. 13 N. Y.
599. See ante, § 80 and note.
8 Berclch v, Marye, 9 Ney. 312 ; Kimball v. Billings, 55 Maine, 147 ; Kock v.
Branch, 44 Mo. 543; Hoffman v. Caron, 22 Wend. 285.
§ 86 INJURIES TO REAL PROPERTY. 117
CHAPTER Vin.
INJURIES TO REAL PROPERTY.
§ 85. Trespasses on real property. ^
§ 86. Landlord's ri^^^ht to enter his premises.
§ 87. Justifiable entries.
§ 88. Self-liberation.
§ 85. Trespasses on real property. — The gist of an ac-
tion for trespass to land consists in the wrongful entry upon it ;
and any entry upon land in the rightful possession of another,
without license or permission, is a trespass, and this, too, though
the land be uninclosed. But the plaintiff cannot recover when
the law has commanded the entry or the taking possession, as
in case of an entry and levy by the sheriff by virtue of a valid
writ. Nor where an entry is made into an inn, shop, store, or
warehouse, on business, or into the coach of a common carrier
of passengers, if the party be fit to be received. Nor where the
party in possession has bound himself by debt to another with-
out any stipulation as to the place of payment. The creditor
may enter the premises for the purpose of demanding payment.^
Nor where the party in possession has assumed to be a trustee
as to the premises. The owner may make an entry to see if his
interests are properly regarded by the party in possession.^
Neither can the plaintiff recover where goods have been sold
which lie upon the premises of the vendor. Unless there is
some agreement to the contrary, the vendee may go upon the
land to take the goods.^ Where the possessor of land has
wrongfully burdened another with his goods, the latter may
take the goods and place them upon the former's land, and may
13 Blackst. Com. 212.
> Newkirk v. Sabler, 9 Barb. 652.
* McLeod v. Jones, 105 Mass. 403. A license is implied anless a severance from
the freehold is necessary. (Ibid. And also McNeal v. Emerson, 15 Gray, 384;
Drake v. Wells, 11 Allen, 141 ; Giles v. Sitnonds, 15 Gray, 441 ; Wood v. Manley,
U Ad. & E. 34. See Patrick v. Colerick, 3 Mees. & W. 483.)
118 INJUBIES TO HEAL PROPERTY. § 86
make an entry for that purpose.^ So where, without any fault
of the owner, goods have got upon the land of another, the
owner may enter and reclaim them.^ A person may also enter
another's premises to succor his beast, in danger of perishing.
Where a person brings or suffers a nuisance upon his premises,
to the peculiar injury of his neighbor, the latter may at common
law enter and abate the nuisance. A defendant may enter the
premises of the plaintiff and remove the eaves of a shed which
overhang the defendant's land, and in rainy weather drip upon
his premises.^ An entry may also be made on another's premi-
ses by reason of necessity, as in endeavoring to escape from a
savage animal, or a man in pursuit, with hostile intent, or when
the defendant enters upon the plaintiff's premises to pass a
flooded highway.* In all these cases,' if the entry be peaceable,
without doing unnecessary damage, the damage done appears to
be damnum absque injuria^ although it has been intimated i«
one case that the damage should be either paid for or repaired.*
In a very old case in the King's Bench, in 1605,® an action of
trespass was brought for the chasing of sheep. The defendant
pleaded that they were trespassing upon certain land, and he
with a dog chased them out ; and as soon as the sheep were out
of the land he called in his (fog. Crew, C. J., said that it seemed
to him that the defendant ^^ might drive the sheep out with the
dog ; and he could not withdraw his dog when he would in an
^ Cole v. Maundy, Vin. Abr. Trespass, 616.
2 Millen v. Fawdry, Latch, 120; Bigelow's L. G. Torts, 382. In trespass for en
tering plaintiffs close a plea that the defendant entered to take certain of his
chattels which were therein, and that he so entered doing no unnecessary dam-
age, was held bad. But it was a case where the defendant dug up the plaintiff's
soil to remove a barn, etc., and it was conceded that he might have entered to
obtain fruit which had fallen from his tree overhanging the plaintiff's land, and
this on the ground of accident; and so of a tree falling into the premises of
another. (Anthony v. Haney, 8 Bing. 187. See 3 Blackst. Com. 4. ) The right to
enter the lands of another to obtain property has been denied by some American
cases, such as where the defendant entered to obtain a millstone belonging to
him, to obtain a mare and colt, etc. (Heermance v. Vernoy, 6 Johns. 5; Blake
V. Jerome, 14 Johns. 406; Newkirk v. Sabler, 9 Barb. 652.) But it was still ad-
mitted that the act might be justified on the score of necessity, or even to saccor
cattle in danger and belonging to the party entering. (Absor v, French, 2
Show. 28.)
* Penruddock's Case, 5 Coke, 1006.
« Absor V. French, 2 Show. 28; Tear Book, 37 Hen. YI, p. 37, pi. 26.
6 Chambers v. Bedell. 2 Watts & S. 225.
« Millen v. Faudrye, Poph.161.
§ 86 INJURIES TO BEAL PROPERTY. 119
instant, and therefore it is not like to the case of 38 Edw. Ill,
where trespass was brought for entering into a warren, and
there it was pleaded that there was a pheasant in his land, and
his hawk flew and followed it into the plaintiff's ground ; and
there it seems that it is not a good justification, for he may pur-
sue the hawk but cannot take the pheasant (6 Edw. lY, fol. 7).
A man cut thorns and they fell into another man's lands, and
in trespass he justified for it, and the opinion was, that notwith-
standing this justification, trespass lay, because he did not plead
that he did his best endeavor to hinder their falling there ; yet
this was a hard case. But this case is not like to these cases,
for here it was lawful to chase them out of his own land, and
he did his best endeavor to recall the dog." Doderidge, J.,
agreed, observing : " A man is driving goods through a town,
and one of them goes into another man's house, and he follows
him ; trespass doth not lie for this, because it was involuntary,
and a trespass ought to be done voluntarily, and so it is injuria^
and a hurt to another, and so it is damnum^ The point was
distinctly made by Littleton for defendant, that if a man '^ be
making of a lawful chase, and cannot do it without damage to
another, this is damnum absqtie injuria^ (21 Hen. VII, fol.
28.) And this view appears to have been taken by the judges,
although it does not appear from the report of the case that any
actual damage was caused by the defendant's chasing the sheep.
In an action against the defendant for breaking the plaintiff's
close with dogs, etc., and trampling down his grass in a certain
close on divers days, the usual notice not to trespass was proved,
and a witness proved that after the notice he saw the defendant
walking down the turnpike road, and his dog jumped into the
close. Parke, B., was decidedly of opinion that the dog jump-
ing into the field without the consent of its master not only was
not a willful trespass, but was no trespass at all on which an ac-
tion could be maintained. He therefore nonsuited the plaintiff.^
§ 86. Landlord's right to enter. — A landlord may enter his
premises after the expiration of his tenant's term, and after no-
tice to quit and failure to deliver possession ; that is to say, after
the tenant's right to the possession has ceased, and the landlord's
1 Brown v. Giles, 1 Car. & P. US. See Bead t?. Edwards, 17 Com. B. K S. 260.
120 INJURIES TO REAL PROPERTY. §§ 87-8
right to enter has accrued. So in trespass, for breaking and en-
tering plaintiff's house, it appeared that the plaintiff had been
tenant of the house to the defendant from week to week ; that he
had received a regular notice to quit, but omitted to deliver up
possession ; whereupon, the defendant, at a time when nobody
was in the house, broke open the door with a crowbar and other
forcible applications, and resumed possession. Some little fur-
niture was still in the house. The right to enter peaceably was
conceded by the court ; and they said if he had used force, that
was an offense in itself, but one against the public for which he
might be indicted, if he had done wrong,^ The judgment be-
low being for the plaintiff, a new trial was ordered.
§ 87. • Justifiable entries. — '' If one comes into my close
with an .iron bar and sledge, and there breaks my rocks, and
afterward goes off, leaving the sledge and bar in my close,
in an action of trespass for carrying them off, I may justify the
taking of them and placing them in plaintiff's close, next ad-
joining, especially if I give notice thereof to the plaintiff, as
was pleaded, since they were brought upon my close of his own
wrong ; and in such case I am not bound to. take them to the
pound, but may well remove the tort done to myself by the
plaintiff." ^ But not where the goods are placed on the grounds
of a third party.8
§ 88. Self-liberation. — A person improperly detained against
his will, without any color of authority, may force his way out.
In an action of trespass for breaking plaintiff's close and carry-
ing off his goods, it appeared that the plaintiff, a merchant,
contracted to purchase a wagon-load of cotton from the defend-
ant at a stipulated price, and the cotton was turned out and
weighed. It was then discovered that the cotton was fraudu-
lently packed, and the plaintiff refused to take it at the price
stipulated, but insisted upon the right to retain it, paying for it
^ Turner v. Meymott, 1 Bing. 158; Taunton v. Costar, 7 T. R. 431; Mussey v.
Scott, 32 Vt. 82; Butcher v. Butcher, 7 Bam. & C. 399.
> Cole V. Maunder, 2 Rolle's Abr. 566; Rea v. She ward, 2 Meea & W. 424; Tyr-
ringham's Case, 4 Rep. 386; Patrick v. Colerick, 3 Mees & W. 483.
s Patrick v. Colerick, 3 Mees & W. 483; Chase v. Jefferson, 1 Houst. 257; 3
BlaokBt. Com. 4.
§ 88 INJURIES TO REAL PBOPERTT. 121
what, upon a survey by merchants, should be thought its value.
To this the defendant objected ; but the cotton was allowed to
remain in plaintiffs yard till the next morning, when the de-
fendant went and replaced it in his wagon. To prevent its re-
moval, plaintifE locked his gate, and defendant then broke it and
forced his way out. The court below charged that, the cotton
being fraudulently packed, the plaintiff had a right to refuse
payment of the stipulated price ; but this put an end to the con-
tract of sale, and the defendant had still the title to the cotton ;
and as to the trespass, that defendant, having entered by plaint-
iffs consent, and he and his goods being detained against his
will, he had a right to force his way out, and committed no tres-
pass in doing so. This view of the law was held, on appeal, to
be correct.^
1 Robson V, Jones, 2 BaU. 4.
122 INJURIES FROM MININQ OPERATIONS. § 90
CHAPTER IX.
INJURIBS TO PROPERTY RESULTING PROM MINING OPERATIONAL
§ 90. Right of surface support — Common-law presumptions.
§ 91. Express grant of right to surface support.
§ 92. Support from adjacent soil.
§ 93. Lateral support to ditch property.
§ 94. Flooding.
§ 96. Upper and lower level.
§ 96. Mining operations regarded as nuisances.
§ 97. Fraudulent working.
§ 98. Prior possession of lands adjoining mines. ,
$ 99. Right of oldest locator. «
§ 90. Right of surface support — ^The common4aw pte-
sumptlons. — There is a prima facie inference at common
law upon every demise of minerals or other subjacent strata,
where the surface is retained by the lessor, that the lessor is
demising them in such a manner as is consistent with the reten-
tion by himself of his own right to support. In the absence of
express words, showing clearly that he has waived or qualified
his right, the presumption is that what he retains is to be en-
joyed by him modo et forma^ and with the natural support
which it possessed before the demise.^ So, in an action for un-
dermining the foundation of a house, it is sufficient to allege
that the owner, by reason of his possession of the house, is
entitled to the support of the adjacent soil for its foundations,
although it is not shown how the right was acquired.^
' In Harris xi. ^yding, 5 Meeson & W. 59, veins and mines
were reserved from a grant, " with free liberty of ingress and
regress, to come into and upon the premises to dig, delve, search
for, and get the said minerals and every part thereof, and to
^ Dngdale v. Robertson, 3 Kay & J. 695. In Haines v. Roberts, 6 EL & B. 643;
S. C. 7 £1. & B. 625, the duty of support in such cases is recognized as a general
common-law right. See, also, to the same effect, Rogers v. Taylor, 27 L. J. N.
8. Ex. 173 ; 2 H. & N. 828.
a Rogers v. Taylor, 27 L. J. N. a Ex. 173 ; 2 H. & N. 828.
§ 90 INJUBIES FROM MINING OPEBATIONS. 123
Bell and dispose of, take and convey away the same, at their
free will and pleasure ; and also to sink shafts, etc., for the rais-
ing up, working, carrying away, and disposing of the same or
any part thereof, making a fair compensation to the grantee for
the damage done to the surface of the premises, and the pasture
and crops growing thereon." Even under these broad words of
reservation, the grantor was held entitled only to enter upon the
land and take the coal in a reasonable manner, leaving a reason-
able support to the surface, and not to take away the coal in a
careless, negligent, or improper way.^
Where the surface of land and the minerals under it belong
to different owners, the owner of the surface is prima facie en-
titled to support from the adjacent strata ; and the owner of
the minerals in working them is bound to leave sufficient sup-
port for the surface in its natural state. A deed which severed
the surface from the jninerals, contained a reservation of the
mines to the grantor, with free and full power and liberty to
work, sink, dig for, or win the same, and to drive drifts, make
water-courses, or do any other act necessary or convenient for
the working, winning, or getting the same, with a covenant by
the grantor to pay to the grantee treble the damages, loss, or
prejudice which the grantee should sustain by reason of such
digging or working. It was held that the reservation was sub-
ject to the implied right of the grantee of the surface to support,
and did not empower the grantor to remove the whole of the
minerals without leaving a support for the surface. And gen-
erally, where an owner of land has granted the surface, reserving
the coal-mines and seams of coal, and a right of entry for the
purpose of working and winning the same, making compensation
for the damage caused in so doing, he is not entitled to work
out all the oeal so as to cause the surface to sink, unless the es-
tablished course and practice of good mining at the time of the
reservation, justifies him in so doing.^
In Jones v. Wagner, 66 Pa. 429,^ by partition, the surface
was severed from the underlying coal, and the parts were allot-
1 Harris v, Byding, 6 M. & W. 60; 8 L. J. K. S. Ex. 181.
^Smarto. Morton, IJur.N. 8. 826; SG.L. B. 1001 ; 24 L. J. Q. B. 2d0 ; 6EI.&;
BI. 30.
Approyed in Homer v, Watson, 79 Pa. 661.
124 INJURIES FBOM MINING OPERATIONS. § 90
ted to different heirs, without any limitation as to the removal
of coal. It was held that the ownet of the coal could not re-
move it without leaving sufficient support for the surface. The
mining property is servient to the surface to the extent of suffi-
cient supports to sustain it, and on default the owners and
workers are liable for damages. To control the rule of the com-
mon law, an usage to mine without observing this duty must be
BO ancient and uniform in *the particular region as to amount to
a custom. Such custom must be so ancient that the memory
of man runneth not to the contrary. The upper and under-
ground estates are governed, as other estates, by the maxim, sic
utere tuo ut alienum non Icedas.
The court stated the case and declared the law as follows :
" The piece of ground out of which the controversy in this
case has arisen formerly belonged to John Ormsby's estate, and
in the partition of that estate in November, 1855, the minerals
in and the surface of the land were separated and made to con-
stitute two separate and distinct properties or estates, without
any restriction, limitation, or servitude imposed on either, and
were so allotted among two of Ormsby's heirs. The plaintiff
claims title to the surface through the heir to whom it was al-
lotted, and so do the defendants to the minerals from another heir
to whom they were allotted.
" The question in the court below, and here, is whether the
latter have, by their unrestricted title, the right to mine and
take out all the coal underlying the surface, without liability
for injury thereto, or to buildings and improvements thereupon
by subsidence or otherwise. The learned judge below reserved
the point, and submitted to the jury the question of injury; to
what amount, and whether it arose from unskillful or negligent
mining in not leaving sufficient pillars or props in the mine to
sustain intact the surface. On this question the jury found for
the plaintiff, and at a subsequent day the court ruled the re-
served question also in his favor, and entered judgment on the
verdict. From this statement it will appear that the only neg-
ligence or unskillfulness at all attributable to the defendants, if
any, arose from not leaving sufficient pillars of coal or supports
to sustain the surface, and this they undoubtedly did not, most
probably under the belief that all the coals in the mine belonged
§ 90 INJURIES FROM MINING OFCBATION8. 125
to them by virtue of their purchase and title. This was cer-
tainly true with the exposition of such a right given by Baron
Parke, in Harris v. Ryding, 5 M. & W. 60 : ' I do not mean to
say,' observed that able judge, ' that all the coal does not be-
long to the defendants, btit they cannot get it without leaving
proper supports.^
" The right of supports, ex jure naturoe^ which the owner of
the soil is entitled to receive from the minerals underneath,
has, within comparatively a few years, received much attention
in the courts in England, and the rule deducible from the cases
in all the courts, the House of Lords, Exchequer, and Queen's
Bench, is, that where there is no restriction or contract to the
contrary, the subterranean or mining property is subservient to
the surface to the extent of sufficient supports to sustain the
latter, or, in default, there is liability to damages by the owners
or workers of the former for any injury consequent thereon to
the latter. This is fully supported by Harris v. Ryding, 6 M.
& W. supra^ determined at Easter Term, 1839, in the Ex-
chequer; Humphries v. Brogden, 1 Eng. Law & Eq. 251,
(1850) in the Queen's Bench, before Lord Campbell, C. J.,
and Patteson, Coleridge, and Erie, JJ. The whole ques-
tion was there discussed most learnedly and ably by the Lord
C. J., and the same result arrived at as had been in the Court
of Exchequer, supra, and in the case of The Earl of Glasgow
V. The Hurlet Alum Co., House of Lords in 1850, 8 Eng. Law
& Eq. 18. There are many other cases referred to in the En-
glish courts to the same efEect, by Rogers on Mining, p: 455 et
seq. Among them are Rowbotham v. Wilson, 8 H. L. Cas. 348 ;
Pennington v. Gallard, 9 Ex. 1, for the principle stated by
the learned author at page 467 : *• That if an owner of lands
grant a lease of the minerals beneath the surface, with power
to work and get them in the most general terms, still the lessee
must leave a reasonable support for the surface, and so con-
versely, where the minerals are demised and the surface is re-
tained by the lessor, there arises a prima facie inference at com-
mon law, upon every such demise, that the lessor is demising
them in such a manner as is consistent with the retention by
himself of his own right of support.' These citations prove
two things, viz., that the owner of a mineral estate, if the law
126 INJURIES FROM MIKING OPERATIONS. § 90
be not controlled by the conveyance, owes a servitude to the
superincumbent estate of sufficient supports ; consequently, the
failure to do so is negligence, and so may be declared upon.
(Humphries v. Brogden, supra.)
"A usage to mine, without the observance of this duty by de-
fendants, must have been so ancient and uniform in the region
in which the property is situated as to amount to a custom or
usage capable of controlling the rule of the common law cited
above, and of becoming the law itself. One element of such a
custom would be, that it is so ancient ^ that the memory of man
runneth not to the contrary.' This could not be, and was
hardly pretended of the 'locality in question. Nor is it likely
that in a business like mining bituminous coal, found only in
the western counties of the State, there ever was any rule there
other than that which would result from convenience.
^^ As to the house in question damaged, it undoubtedly had
a right to supports as incident to the ground on which it stood.
What might be the consequence of building in an unreasonable
manner, taking into view the mining rights beneath, on a ques-
tion of the sufficiency of the supports, does not arise in this case,
and need not be decided.
" We have no case strictly of authority in our books, nor do I
find any in the books of our sister States. In most of them but
little subterranean mining exists, and in others the question has
not presented itself for adjudication. In none of the cases
cited by the learned counsel from our State reports is the ques-
tion decided or intentionally touched. We therefore must rule
the point for ourselves for the first time. The English cases re-
ferred to, and others which might be referred to, emanate from
great ability, and from a country in which mining, its conse-
quences and effects, are more practical, and the experience
greater than in any other country of which we possess any
knowledge. We think it safe, therefore, to follow its lead in
this matter, and hold that, in the case in hand, the recovery was
right, predicated as it was of the want of sufficient supports in
the mine to prevent the plaintiff's ground, house, and orchard
from injury by subsiding into the cavity made in the earth by
the removal of the coal. The upper and underground estates
being several, they are governed by the same maxim which
§ 90 INJURIES FROM MINING OPERATIONS. 127
limits the use of property otherwise situated, sic utere tuo tU
alienum non Icedaa. We have no doubt but all the evils dep-
recated by the adoption of this rule will disappear under regu-
lations adapted to each case of severance of the soil from the
minerals. Contract may devote the whole minerals to the en-
joyment of the purchaser, without supports, if the parties choose.
If not, the loss by maintaining pillars or putting in props will
necessarily come out of the value of the mineral estate. If at
any time the public necessities may demand the pillars to be
removed for fuel, we may safely assume that the same neces-
sity will provide some rule which will be satisfactory in such a
crisis. We think the case was well decided below, and that the
judgment must be affirmed." ^ It follows from these principles
that whatever may be the loss to the subjacent owner by reason
of the duty incumbent upon him to leave a proper support for
the surface, it is damnum absque injuria^ and he must submit to
it, in the absence of special agreement, custom, or prescriptive
right.
But where the conveyances of an estate in a mining district,
sold in lots, contained an exception of all mines and minerals un-
der the land included in the lot conveyed, with full power for
the grantor to work, get, and dispose of them, without entering
upon the land sold, and without being answerable for any injury
to the land, or any buildings on it, by reason of working or get-
ting the excepted mines or minerals, and without being liable
to any action or suit for any such injury, the court held that a
purchaser of two of the lots was not entitled against the grantor
to either vertical or lateral support for the surface of his land.^
Where a lessor of a coal-mine covenanted that the lessee
should peaceably and quietly ^^ have, hold, occupy, possess, and
enjoy the mine, without any let, suit, trouble, molestation, inter-
ruption, or disturbance whatever," the lessor, in working iron-
stone lying between the surface of the soil and the demised coal,
caused part of the roof of the coal-mine to crush and fall in, and
to be flooded ; these acts were held to constitute a breach of the
covenant, and the lessee was also held entitled to an injunction
restraining the lessor from working the iron-stone within such
1 Jones v. Wagner, 66 Pa. 429, approved in Homer v, Watson, 79 Pa. 661.
s WUliams t;. BagnaU, 12 Jur. N. 8. 967.
128 INJURIES FROM MINING OPERATIONS. § 90
a distance of the surface as interfered with the lessee getting
the coal with full advantage and profit.^ A lessor has no right
to let down the surface soil, and the right to support such sur-
face soil is incident to the grant of the surface, and cannot he
taken away unless by express agreement.^ If, however, from
the terms of a lease it can be gathered, by reasonable construc-
tion, that it was the intention of the lessor that the lessee of a
mine has the right to work the mine so as to let down the sur-
face, subject only to paying damages according to the covenants,
the liability will be confined to those covenants.^ And so, where
by a lease it appeared to be the intention of the parties that all
coal should be removed except certain specified pillars, and these
were left, and the defendants otherwise worked the mine in a
proper manner, but still their legitimate working caused a sub-
sidence, they were held not liable.* The English doctrine is now
well settled, that, as a general rule, in the absence of express
contract, the owner of the minerals cannot remove them without
leaving sufficient support to maintain the surface in its natural
condition, and that if the mine-owner so weakens the support to
the surface by the removal of the minerals as to cause its sub-
sidence, he is liable for all the damages that ensue therefrom.'^
In New York, it has been held that all that can be claimed by
an owner of the surface, under the right of subjacent support,
is that no physical injury be wrought to the surface in its nat-
ural state, or as contemplated at the time of the grant. The
mine-owner is not bound to support buildings subsequently
erected. Whatever is necessary for the latter to do for the
profitable and beneficial enjoyment of his own possession, and
which he may do with no ill effect to the surface in its natural
state, he may do, though it harm erections lately put thereon.
These rights of the mine-owner do not require or depend upon
a covenant for compensation.
1 Shaw t7. Senton, 27 Law J. N. S. Ex. 263; 2 Hurl. & N. 858.
s Proud V. Bates, 31 Law J. Gh. 406; 5 Am. L. Reg. N. S. 171.
B Smith V. Darby, Law B. 7 Q. B. 716; 3 Moak Eng. R. 281; Aspdeu v. Seddon,
L. R. 10 Ch. App. 394.
4 Eadon v. Jeffcock, 7 Law R. Ex. 379: 3 Moak. Eng. R. 458. See Dugdale o.
Robertson, 3 Kay & J. 695: Taylor v. Shafto, 8 Best & S. 228.
6 Wood on Nuisances, 185; cases cited, 184-190; Wakefield v. Baccleugh, Law
R. 4 Eq. 624; Ryckman v. Gillis, 57 K. Y. 68; 15 Am. Rep. 464; Marvin v. Brew-
ster L Co. 55 N. Y. 638; 14 Am. R. 322.
§ 91 INJURIES FROM MINING OPERATIONS. 129
Nor can the exercise of these rights be complained of because
they create a nuisance to the owner of the surface. Where
there is an express grant of a right to do all things necessary to
attain an end, and a nuisance to the grantor results as a neces-
sary incident thereto, there can be no claim for private damage
therefrom. The mine-owner, for instance, cannot be restrained
from blasting in the night time, as is usual in mines, because it
disturbs the sleep and thus affects the health of the owner of the
surface and of his family, or diminishes the value of his estate.^
§ 91. Express grant of right to surface support — In-
juries to subterranean streams. — A deed by which mineral
rights are conveyed must clearly express that the grantor also
gave the right to take away the surface support, before his re-
served right to the proper support of the surface will be held
also to have been conveyed.
In a late case, (Jan. 6th, 1876) in the Supreme Court of
Pennsylvania, the court, by Gordon, J., said : " We have held,
in the case of Wood & Co. v. Watson, decided at the present
term, approving Jones v. Wagner, 10 P. F. Smith, 429, that, of
natural right, the surface land is entitled to support from the
strata below, and that when one owning the whole fee grants the
minerals, reserving the surface to himself, his grantee is only
entitled to so much of the minerals as he can get without injury
to the superincumbent soil, and that the plea of a custom to the
contrary could not be entertained, because such a custom would
be unreasonable, and hence wanting in an element essential to its
validity. To the opinion in that case we refer for the reasoning
intended to sustain that conclusion. It is admitted, however, that
as a man may do what he pleases with his own, he may, by grant,
part with the right of surface support, and it is contended that
such is the purport of the deed in question. That part of the
aforesaid deed which is supposed to release such right reads thus :
*' And all the privileges necessary for the convenient working,
running, and transportation of said coal, and deposition of ex-
cavated matter, and also all rights and privileges incident or
usually appurtenant to the working and using of coal-mines.'
i Marvin v, Brewster Iron Mining Co. 55 N. Y. 538» and numerous authorities
reviewed. See. also, Hays v. Cohoes, 2 N. Y. 159.
D. A. I.— 9.
130 INJUBIES FBOM MINING OPERATIONS. § 92
But we cannot perceive that this grant in any way compromises
the grantor's right of surface support. If, indeed, the destruc-
tion of the superincumbent estate be one of the privileges ne-
cessarily incident and appurtenant to coal-mining, then the said
indenture does convey the right contended for. As, however,
we have just determined that such destruction of the surface is
in no way incidental to such mining, we must necessarily refuse
our assent to the construction contended for. It is, in efEect,
but another form of a plea of a general custom or usage per-
missive of the removal of all adjacent support. For it is argued
that when the vendor used the words, " all the rights and priv-
ileges incident or usually appurtenant to the working and using
of coal mines," he did so in view of such custom as above re-
ferred to, and that this covenant must be interpreted accord-
ingly. The answer to all this is, that as no such custom could
have existed because of its unreasonableness, it could not have
entered into the contract of the parties. Support is part and
parcel of the reserved estate — it is of common right, and hence
must pass, if at all, by express grant, and is not to be defeated
by mere implication arising from language that does not import
such an efEect. We think the whole question is determined in
the negativing of the custom contended for. So far as we can
judge from the record presented us, the loss of the plaintiff 's
springs was occasioned by the ordinary operation of mining,
and would have occurred though no part of the surface had
been broken. Mining must interfere more or less with those
subterranean streams and percolations of water which appear
upon the surface as springs. To say that the owner of the sub-
strata shall be accountable in damage for their disturbance is to
say that he shall have no use whatever of his minerals, for with-
out interfering to some extent with such waters, mining is im-
possible." ^ And as to the subterranean streams and percolations,
and the injuries done to them, it is a case of damnum absque
iryuria?
§ 92. Support from adjacent soil — ^In a note to the case
of Bononi v. Backhouse, 96 Eng. C. L. E. 622 ; S. C. 9 H. L.
1 Coleman v. Chadwick, Supreme Court of Penn. JaxL 6th, 1S76, 76 Pa. Kl, 2i2.
9 See pott. Chapter X.
§ 92 INJURIES FROM MINING OPERATIONS. 131
Cas. 503, it is said that the doctrine that the right of support to
soil by the adjacent and underlying strata, and, subject thereto,
the correlative right to make use of s\ich strata in any lawful
and reasonable manner, sxejure naturoe^ or, in other words, the
natural incidents of property, and not of the character of ease-
ments, received the apparent approbation of the House of Lords
in Rowbotham v. WUson, 2 L. T. N. S. 642 ; S. €. 8 H. L. Cas.
S48, and see Brown v. Robins, 4 Hurl. & N. 186 ; and that this
view is generally adopted in the United States, where it is
further held, as a consequence, that, except by grant, and per-
haps prescription, the owner of land cannot gain any additional
right of support by the erection of buildings thereupon.^
"The consequence necessarily is," continue the annotators,
" that until the owner of the subjacent strata does some act which
is productive of actual and present injury to the owner of the
neighboring soil, no action can lie. The mere possibility or prob-
ability of future damage is no more a ground for an immediate
remedy at law than it would be in respect to acts done on the
surface. The continued exercise of the right itself, as it is not
necessary to its establishment, so cannot be an infringement
upon the rights of others. Another circumstance of great
weight, of course, is the fact that the abuse or excessive exercise
of such a right is necessarily secret, and amounts to a possessio
dandestina. See the observations of Bramwell, B., in Solomons
V, Vintners, 4 Hurl. & N. 602. This being so, there can be no
prescription of acquisition, which must always be founded on
acts which are apparent, notorious, and adverse, or as it is ex-
pressed in the Roman law, nee clam nee precario?' This was the
ground taken by the Supreme Court of Pennsylvania in Wheat-
ley V. Baugh, 25 Pa. St. 533, where it was held that the use of
a spring, which depends for its supply upon percolations through
^ Citing Lasala r. Holbrook, 4 Paige, 169; Pantin v. Holland, 19 Johnson, 92;
Farrand v. Marshall, 21 Barb. 407; S. C. 19 Barb. 380; Thurston v. Hancock, 12
Mass. 221; Bickart r. Scott, 7 Watts, 460; Shreve v. Stokes, 8 B. Mon. 453;
Charless v, Bankln, 22 Mo. 388; McOuire r. Grant, 1 Dutch, 356; Badcliffe v.
Brooklyn, 4 Comst. 202. See, also. Hext v. Gill, Law B. 7 Ch. App. 699; S. C. 3
Moak, 574; Salisbury v. Gladstone, 9 H. L. Cas. 705; Boothby v. Company, 51
Me. 318; Guest v. Beynolds, 68 111. 478; Bailroad t\ Beany, 42 Md. 117; Beard v.
Murphy, 37 Vt. 99.
s Dig. lib. 8^ Tit. 5, Fr. 10; Lib. 39, Tit. 3, Fr. 1; sec. 23, 2 Pardessus Trait, des
Servitudes; Savigny, Possession, trans, by Perry, 382; Mackeldy Droit Bom. 326.
132 INJUBIES FROM MIXING OPERATIONS. § 92
the adjoining strata, for the purposes of a tannery bj the owner
of the land from which it issues, though for more than twenty-
one years, would not create the presumption of a grant, so as to
deprive the owner of the adjoining land of the use of his land
for mining or other lawful purposes, though thereby the spring
might be destroyed.^
^^ There is nothing in this doctrine, laid down in Wheatley v.
Baugh, to interfere with the rule that an action will lie for
nominal damages for the infringement of a right which is accom-
panied by no appreciable injury, because otherwise, if continued
without interruption for a sufficient time, an easement might be
acquired by prescription. Besides, there must always be a
dubious class of acts, for which the owner of land might well be
permitted to sue ex majori cautela^ and yet which would scarcely
be defined enough to authorize the presumption of a grant from
his omission to do so. There can be no doubt, however, that in
a suitable case relief could be obtained in equity, upon a discov-
ery of such a working of mines as would certainly, or in reason-
able probability, endanger the surface of the adjoining land,
before any actual damage had been sustained." ^
In a case in the House of Lords in 1868, it was held that a rail-
way company was entitled, independently of the special protection
derived from an act of Parliament, and by way of necessary inci-
dent to a grant of land to them, to such lateral support from the
adjacent land of the vendor as might be necessary to uphold a
bridge constructed by the company for their railway, and that a
lessee of the vendor was properly restrained from working min-
erals under the adjacent lands, not the property of the company,
80 as to affect the stability of the bridge. The. fact that the con-
veyance of the land was compulsory, under the act, was held not to
prevent its passing to the company the necessary right of support
as an ordinary legal incident. Another feature in this case was
that an old mine under the land had been long flooded with water,
and the lessee threatened to drain the mine and renew work in
it. The company claimed that the water in the mine was addi-
1 See, also, Hoy r. Sterrett, 2 Wattfl. 330.
•i Farrand v. Marshall, 21 Barb. 409; Mitchell v. Dors, 6 Yes. 147. As to the
power of the court to grant an inspection of the defendant's mine in such a case,
see Attorney-General v. Chambers, 12 Beav. 159; Bennitt v. Whitehoase, 2 L. T.
X. S. 45; Ennor t'. Barwell, 3 L. T. N. S. 170.
§ 9fi INJURIES FBOM MINING OPERATIONS. 1S3
tional support to the surface ; but it was held, in the House of
Lords, that, although it might be additional support, the com-
pany had no right to speculate on the continuance of such an
accidental circumstance as the flooding of the mine, and that
the lessee ought not to be restrained from withdrawing the
water from the spaces left in the old workings if such effect
should be produced by working the colliery in a proper manner.
It being impracticable to define beforehand the limits within
which the workings ought to be restrained, an injunction in
general terms against working so as to produce the particular
evil apprehended was held properly expressed.^ And it is fur-
ther held that, although there is no doubt that a man has no
right to withdraw from his neighbor the support of adjacent
soil, there is nothing at common law to prevent his draining
that soil if it becomes necessary or convenient for him to do so.
An. owner of land has lio right at common law to the support of
subterranean water, and an adjoining owner has been held enti-
tled tQ drain his own land, although the result of his doing so
was to cause a subsidence in the land of the otber.^
In Partridge v. Scott, 3 Mees. & W. 220, plaintiflE was pos-
sessed of two houses — one an ancient one and the other recent,
built on his land and within his boundary ; and the modem house
was stated to have been built on land which had been previously
excavated for the purpose of getting coal. No such statement
appeared in the case as to the ancient house, and the court would
not, therefore, intend that it was built originally on excavated
land, or that the land had been excavated more than twenty
years. The question was considered precisely the same as to
both houses. The houses were damaged by coal-mining opera-
tions in the immediate vicinity. Rights of this sort were held to
have their origin in grant. If a man builds his house at the ex-
tremity of his land, he does not thereby acquire any right of ease-
ment, for support or otherwise, over the land of his neighbor. He
has no right to load his own soil so as to make it require the sup-
port of that of his neighbor, unless he has some grant to that efiEect.
1 EUiot V. North Eastern Railway Co. 10 H. L. Cas. 333; 32 Law J. Ch. 402; 2
DeGex, F. & J. 423; 30 Law J. Ch. 160; 1 Johns. & H. 145; 29 I^w J. Ch. 808: 6
Jur. N. S. 817.
< Popplewell V. Hodkinson, 4 Law R. Ex. 248 ; EUiott v. N. E. B. B. Co. 10
H. L. Cas. 333: 32 Law J. Ch. 402.
134 INJURIES FROM MINING OPERATIONS. § 92
And 60 it was held, in that case, that if the land on which the
plaintiff's house was built had not been previously excavated,
the defendants might, without injury to the plaintiff, have
worked their coal to the extremity of their own land, without
even leaving a rib of ten yards, as they did ; and if the plaint-
iff had not built his house on excavated ground, the mere sink-
ing of the ground itself would have been without injury. By
building on ground insufficiently supported, he, therefore, caused
the injury to himself, without any fault on defendants' part,
unless at the time, by some grant, he was entitled to additional
support from the land of defendants ; and in that case it was
held that none was proved, and none could be presumed.^
But where a house was built over twenty years on lands un-
der which coal-mines had been worked, according to the custom
of the country, leaving the soil weaker than it would otherwise
have been, the defendant, knowing this, worked his coal-mines
under land adjacent — but not immediately adjoining — so as to
cause the intervening soil to give way, and thus to cause the soil
under the foundation of the plaintiff's house also to give way,
the defendant was held liable. The plaintiff was held entitled
to the support of the soil in its natural state. In this case,
however, the facts in regard to the right of adjacent support
were all found by a jury.^
A plaintiff, in 1824, built a house on a certain waste, and in
the following year obtained a grant from the crown of the sur-
face, excepting mines. The house was about thirty yards from
a quarry. In 1840, the tenant of the owner of the minerals,
who claimed a right to take the minerals without making com-
pensation for damage to the surface, began to get stone from
under the house, in consequence of which, and of the blasting
operations, the house became untenantable. In 1853, the de-
fendant cut away the supports which had been left under the
house, and the house fell in. The judge left the question to the
jury, who found that the plaintiff had enjoyed the right of sup-
port for his house, on the foundations on which it stood, without
1 Partridge v. Soott, 3 Mees. & W. 220; 7 L. J. N. S. Excli. 101. See Wyatt v,
Harrison, 1 L. J. N. S. K. B. 237; 3 B. & Ad. 871. See, also, Qulncy t\ Jones, 76
III. 231; Bichardson v. Company, 25 Vt. 465; Cahill v. Eastman, 18 Minn. 334;
Moody V. McClelland, 39 Ala. 45.
« Brown v. Bobbins, 28 L. J. N. S. Exch. 250; 4H. & N. 186.
§ 92 INJUBIES FROM MINING OPERATIONS. 136
interruption, for twenty years. On motion for a new trial, on
the ground that the judge ought to have told the jury that the
enjoyment was contentious and not as of right, the court said
that the question was properly left to the jury.^
An action cannot be sustained if the sinking of land be due to
a superincumbent weight placed upon plaintifE*s premises, unless
a right was acquired as agaihst the adjoining occupant by grant
or prescription. Should a defendant dig a gravel pit in his
premises, close to the line between his own and the plaintifiPs
fence, and within two feet of the line, on the plaintifiPs land,
stands a brick house, erected ten years before, and occupied by
the plaintifE, and by reason of the defendant's excavation, the
premises being located on the side of a hill, it becomes nec-
essary for the plaintiff to vacate his house, and to take it down
to prevent it from sliding into the pit, the defendant is not liable,
since it was the plaintiff's fault to build so near the line.^ Even
though a building may have stood in a certain position during
the period of prescription, if its walls were improperly con-
structed, so that the building gave way for this cause and not
by reason of the excavation alone, the plaintiff cannot recover.^
As the right to the support of buildings from other buildings
is not a natural right, where the adjoining buildings were erected
by different owners, the right of support can be acquired in favor
of either of the original owners (and their successors in estate)
only by grant of the other, or by prescription.* If there be an
1 Rogers v. Taylor, 2 H. & X. 828; 27 L. J. Exch. 173. To tlie point that tlie
owner of an ancient liouse is entitled to the lateral support of his neighbor's
land, as well for the house as the surface of the soil itself — see Hunt v. Peake,
29 L. J. Ch. 785. That when the working of mines, in however careful a man-
ner, has occasioned the subsidence of the laud of another, although not imme-
diately adjoining, damages may be recovered in respect of injury to buildings
thereon erected or enlarged within twenty years, provided their weight did
not occasion or contribute to the subsidence— see Hamer v. Knowles, 30 L. J.
Exch. N. S. 102; 6 H. & N. 454; Bibby v. Carter, 28 L. J. Exch, N. 8. 182; 3 H.
& N. 153. See, generally, Richards v. Harper, L. R. 1 Exch. 199; Moody v.
McClelland, 39 Ala. 45.
'^ Thurston i\ Hancock, 12 Mass. 220. The court remarked that the man who
builds a house adjoining his neighbor's land ought to foresee the probable use by
his neighbor of the adjoining land, and by convention or contract with his neigh-
bor, or by a different arrangement of his house, secure himself against future in-
terruption and inconvenience — as it was, the injury was held to be damnum CLbsque
ir^uria. (Panton r. Holland, 19 Johns. 92; Lasala i\ Hoi brook, 4 Paige, 169.
See, also, as to adding a new story, Murchie v. Black, 34 Law J. Com. P. 337.)
8 Richart i\ Scott, 7 Watts, 460; Dodd v. Holme, 1 Ad. & E. 493.
* Peyton v. Tendon, 9 Bam. & C. 725.
136 INJURIES FttOM MINING OPERATIONS. §§ 93-4
intervening building in the block, between the premises of the
plaintiff and those of the defendant, the pulling down of the
latter's building does not give a cause of action, especially if the
plaintiff's building be already in an unsafe condition.^
§ 93. Latoral support to ditch property. — In California,
the court, in th^ case of Clark v. Willett, 35 Cal. 584, expressed
itself as follows, in regard to the general subject of lateral sup-
port, as connected with the subject of mining ditches : The gen-
eral rule undoubtedly is, that a party in possession of the sur-
face of land is entitled to the lateral support which the adjacent
soil affords, and the perpendicular support which is afforded by
the adjacent strata ;, but how far that principle will be enforced
when the surface is used merely for the purpose of a ditch, in
which to carry water for the purpose of trade and traffic, which
possibly can be carried just as well in some other way with but
a trifling additional expense, and without any detriment to the
trade in water, has not, so far as we are advised, been deter-
mined. Whether ditch property in the mineral regions of this
State, although conceded to be real estate, used as it is for the
purposes of trade and commerce, is to be regarded by courts of
equity with the same measure of favor which is bestowed by
them upon land which is held and cherished by the owner for
itself, and not merely put to use for an ulterior object, admits
at least of serious doubt. Such ditches are more or less tempo-
rary. They are not valuable as land. Their value depends en-
tirely upon the demand for water, and when the demand has
ceased, they become worthless. The qualities upon which the
coYnmon law grounds its peculiar fondness for land, and the
reasons why courts of equity will interfere to protect it, would
therefore seem to be measurarbly wanting.^
§ 94. Flooding. — One of the cases most frequently cited
upon this subject is the case of Fletcher v. Eylands, where a
colliery was flooded by water which escaped from the defend-
ants' reservoir down some old mine -shafts under the site of the
1 Solomon v. Vintners' Company. 4 Hurl. & N. 585.
3 Clark V. Wlllett, 35 Cal. 54S: Humphries t\ Brogden, 12 Q. B. 739; Gibson v.
Pucbta, 33 Cal. 316.
§ 94 INJURIES FROM MINING OPERATIONS. 187
reservoir, and through old coal workings under the land inter-
vening between the plaintifiE 's and the defendants' land ; and
there was no personal negligence on the part of defendants, but
their employees, in the construction of the reservoir, had not
exercised reasonable skill and care with reference to the shafts,
to provide for the pressure which the reservoir was to bear. It
was held, in the Exchequer Chamber, that the^ defendants were
liable,^ and this judgment was affirmed in the House of
Lords.^
The doctrine of Fletcher r. Rylandd, L. R. 3 H. L. 330, was
applied, in the Court of Exchequer, to a case where the^defend-
ants had, for their own purposes, caused water to collect and
stay in a locality where, by their operations, it would sink into
their mine, and then get into the plaintifE 's mine and damage it.
The defendants had artificially caused foreign water to get into
the plaintifE 's mine — water which could not, and did not, get
there by natural causes. Though the defendants were not guilty
of any actual negligence in the management of the mine, and
although the accident arose from exceptional causes, they were,
in the Court of Exchequer, still held liable.^ But the relevancy
of Fletcher v. Rylands was' denied in the Exchequer Chamber,
and the decision reversed, and a new trial ordered.* And
in Smith v. Kenrick, 7 Com. B. 615, in the course of the
ordinary working of the defendants' mine, water percolat-
ing in the strata had flowed from that mine into the mine
of the plaintiff. No negligence was proved against the de-
fendants, and it was held that they were not liable for the
damage caused. So, the doctrine of Fletcher v. Rylands has
been held not to apply to the case of water stored in tanks in
India, which are essential to the welfare and existence of the
people. These tanks were erected for the purpose of irrigation,
and were recognized and protected by the Hindoo law, and have
1 Fletcher v. Rylands, Law B. 3 £ng. & Irish Ap. Gases, 330, affirming 8. G. 30
Law J. N. 8 £x. 154; reversing 8. G. in Gonrt of Exchequer, 3 Hurl. & G. 773;
34 Law J. £x. 117, approving Law B. 1 Ex. 285; Lambert v. Bessy, T. Baym. 421 ;
Smith V. Kenrick, 7 Gom. B. 564; 18 Law J. N. S. G. P. 172; Baird r. Williamson,
15 Gom. B. N. 8. 376; 33 Law J. N. 8. G. P. 101.
SLawB.3H. L.330. 8ee Ball v. Nye, 99 Mass. 582.
s Smith V. Fletcher, Law B. 7 Ex. 305 ; Fletcher v. Bylands, Law B. 3 H. L.
330; Law B. 1 Ex. 266; 3 Hurl. & G. 774; Smith v. Kenrick, 7 Gom. B. 515.
* Smith V. Fletcher, Law B. 9 Ex. 64; 8 Moak's Eng. Bep. 510.
138 INJURIES FROM MINING OPERATIONS. § 94
existed from very ancient times.^ Nor does it apply to cases
where a defendant is permitted to divert, or retain upon his own
premises, mere surface water from rain or snow, running in no
defined channel, and which, but for the diversion, might run
upon the plaintiff's land and benefit him. The resulting damage
to the plaintiff is damnum absque injuria? In Illinois,^ lowa,^
Ohio,^ Pennsylvania,® California,^ Missouri,^ and Massachusetts,
it would appear that if the defendant has diverted or obstructed
water, and collected it upon his own land, he is liable for result-
ing damage to his neighbor. And so if by embankments water
is thrown back upon plaintiff's land, or the flow increased to his
damage. It is to be observed, however, that in Massachusetts
only the later cases favor this doctrine,^ while the earlier ones
make such injuries virtually instances of damnum absque inju-
ria^^^ and lay down the doctrine that as to surface water, or
water flowing through drains and ditches, as contradistinguished
from streams, the upper proprietor may obstruct it^ and cause it
to flow back upon the lower ; and that the right of a person to
the free control of his own land above, upon, and beneath the
surface, cannot be restrained by any consideration of injury to
others below ; and which may be occasioned by the flow of sur-
face water in consequence of the lawful appropriation of land
by its owner to a particular use or mode of enjoyment. Such,
also, seems to be the doctrine in New Hampshire and Wisconsin.^^
1 Madras Ry. Co. v. The Zemindar, 30 I.. T. X. S. 770; S. G. L. R. 1 India Ai>-
peal Cases, 364. To the same effect, Nichols c. Marsland, Law R. 10 Ex. 255; S.
C. 14 Moak, Eng. R. 538; Crompton v. Lea, Law R. 19 Eq. 115; S. C. 11 Moak, 719.
'■* Curtis V. Ayrault, 47 N. Y. 73; Livingston r. McDonald, 21 Iowa, 160; Luther
V. Company, 9 Cush. 171; Gannon v. Hargadon, 10 Allen, 106; Broadbent v.
Ramsbotham, 11 Ex. 002, 36J).
SGilham v. Company. 49 111. 484; Gormley t\ Sanford, 52 111. 158.
* Livingstone v. McDonald, 21 Iowa, 160.
5 Tootle f. Clifton, 22 Ohio St. 247.
6 Martin r. Riddle, 26 Pa. 415; Kaufman t'. Griesemer, 26 Pa. 407.
7 Ogbum V. Connor, 46 Cal. 346.
s Laumier v. Francis, 23 Mo. 181.
9 Shipley v. Fifty Associates, 106 Mass. 194; Wilson v. New Bedford, 108 Mass.
261: Ball t'. Nye, 99 Mass. 582; Gray v. Harris, 107 Mass. 492.
10 Gannon v. Hargadon, 10 Allen, 106; Parks r. Newburyport, 10 Gray, 28;
Flagg V, Worcester, 13 Gray, 601; Dickinson r. Worcester, 7 Allen, 19.
"Swett r. Cutis, 60 N. H. 439; Bassett v. Company, 43 K. H. 569; Brown v,
Collins, 53 N. H. 433; Hoyt v. Hudson. 27 Wis. (556; Pettigrew v. Evansville, 25
Wis. 223. Also in Maine— Morrison i'. Bucksport, 67 Me. 353; and Connecticut-
Grant V. Allen, 41 Conn. 156.
%
§ 94 INJURIES FROM MIXING OPERATIONS. 139
In a New York case it is said that if one build a dam upon his
own premises, and thus hold back and accumulate the water for
his benefit ; or if he bring water upon his premises into a reser-
voir, in case the dam or the reservoir give way, and the lands
of another are flooded, it is damnum absque ir^ria^ unless neg-
ligence be shown. In that particular case a steam boiler on the
defendant's premises exploded, damaging some of plaintiff's ad-
jacent buildings, and it was held the plainti£E could not recover
without evidence of negligence.^ The American authorities can-
not be reconciled. It is said that every man has a right to pro-
tect his premises against the fall of rain or snow, although
incidental injury may result to his neighbor by so doing. He
may put proper eaves, troughs, or gutters upon his building
for leading o£E the water from his own ground, and if he keeps
them in order, and is guilty of no negligence, the adjoining pro-
prietor must bear the damage resulting from extraordinary or
accidental circumstances, so long as no one is in fault.^ The
extreme hardship of having a drainage across a valuable town
lot might lead to some modification of the doctrine.^ It seems
to be admitted that the public may lawfully improve streets and
public grounds, though the effect may be to cast falling or
surface water upon adjoining grounds.* Well-defined natural
water-courses must not be injuriously affected; but these do
not include the water flowing into the hollows or ravines in land,
and which is the mere surface water from rain or melting snow,
and is discharged through them from a higher to a lower level, '
the hollows being at other times destitute of water.^ But in the
case of gorges and narrow passages in hilly or mountainous re-
gions, perhaps the case may be different.® The general subject,
^Losee v. Buchanan, 51 N. Y. 476; Bellinger v. Company, 23 N. Y. 47. See,
also, Tapham v. Curtis, 5 Vt. 321; Todd v. Cochell, 17 Cal. {^7; Everett v. Com-
pany, 23 Cal. 225; Sheldon v. Sherman, 42 N. Y. 4S4. But see, contra, Selden v.
Company, 24 Barb. 362; Hay v. Company, 2 Comst. 159; Pixley v, Clark, 35 N.
Y. 520.
« Underwood i'. Waldron, 33 Mich. 232.
»See Vanderwiele v, Taylor, 65 N. Y. 341.
* Greeley v. Company, 53 Me. 200; Martin r. Riddle, 26 Pa. 415; Luther v. Com-
pany, 9 Cush. 171. See Hoagland v, Sacramento, April 30th, 1877, Supreme
Court of California, unreported.
• Hoyt V. Hudson, 27 Wis. 666.
>Ibid. and Bowlsby v. Spear, 31 N. J. 351. See Barnes v. Sabron, 10 Nev. 217;
Ashley v, Wolcott, 11 Cush. 192.
$
140 INJURIES FBOM MINING OPERATIONS. § 94
unconnected with mining operations, will be somewhat further
discussed in the next chapter. A few more mining cases will
now be reviewed.
Where a declaration stated that plaintiffs and defendants were
owners of adjacent mines; that defendants had trespassed on
plaintiffs' mine, and had carried away a quantity of coal ; that
water had arisen in the defendants' mine, against which, but for
the trespass, the coal would have been a sufficient barrier ; that
thereupon it became the duty of the defendants to prevent the
water in their mine from flowing into the plaintiffs' mine, yet
the defendants neglected their duty, whereby the water flowed
into plaintiffs' mine and prevented them from working the same,
and that the removal of the barrier was irreparable ; these things
were held to constitute a cause of action.^
Where the owner of a coal-mine excavated as far as the bound-
ary, (which he was by custom entitled to do) and continued the
excavation wrongfully into the neighboring mine, leaving an
aperture in the coal of that mine, through which water flowed
and damaged it, it was held, in the Court of Queen's Bench,
that the party excavating was liable in trespass for breaking
into the neighboring mine, but not in* case for omitting to close
the aperture, notwithstanding the continuing damage.^
The proprietors of a coal-mine had so worked their mine, by
opening cuttings to draw off the water therein, that they had
caused the neighboring and adjoining mine of the plaintiffs to
be flooded, and from such openings the defendants had also ab-
stracted coal from their neighbors' mines, and sold the same for
their own benefit. An injunction was granted to restrain fur-
ther proceeding, and ft decree was allowed, compelling defend-
ants to stop up the existing openings and cuttings, restraining
them from making further openings, anil for compensation for
damage sustained, and for an account of the value of the coal
abstracted at its market value.^
In an early case in California, a party brought an action for
damages to his mining claim, sustained by reason of the break-
1 Firmstone r. Wlieeley, 2 Dowl. & L. 203 ; 13 Law J. N. S. Ex. 361. And see
Locust Co. V, Oorrell, 9 Phila. 247.
a Clegg V. Deardon, 12 Q. B. 576; 17 L. J. N. 8. Q. B. 233.
« Plant r. Stott, 21 L. T. B. 106.
§ 94 INJURIES FROM MINING OPERATIONS. 141
ing away of a portion of defendant's ditch, owing to the care-
less manner of its construction, and the consequent overflowing
of plaintiff's claim. The location of the claim was subsequent
to the construction of the ditch. The case turned on the ques-
tion of negligence, and it was held that there was none, and the
breaking of the ditch was purely accidental.
The court said : ^^ The important fact having been admitted
that neither of the parties claim as holders of the soil, but sim-
ply by virtue of location or appropriation, it becomes necessary
to ascertain what rights the plaintiffs, who were subsequent lo-
cators, acquired against the defendants. Some of the earlier
English authorities recognize the doctrine that a person may
(even as between owners of the soil) construct or continue what
would otherwise be an actionable nuisance, provided that at
the commencement of it no person was in a condition to be in-
jured by it, or in other words, that mere priority as between
owners of the soil gave a superior right. If a person after-
ward, by building or otherwise, put himself in a situation to be
injured by such structure, it was termed * coming to a nuisance.'
*'*• This doctrine has long since been exploded on the most ob-
vious principles of sound reason. The right of the owner of the
soil to the free use and enjoyment of the same is held to exist
anterior to any erection that may be made by an adjoining pro-
prietor, and in such cases the maxim sic utere tuo ut alienum non.
Icedas applies.
" It will be observed that the reason of the rule is founded on
the ownership of the soil, and that, as between proprietors, the
same rights or privileges are supposed to exist (except in some
few instances) ; but in a case like the present, where neither
party claims an ownership in the soil, and all the rights they
possess relate back, or are acquired at the date of their respect-
ive locations, the reason of the rule ceases, and the maxim qui
prior eat in tempore^ potior est in jure^ as applied by this court
to cases involving disputes growing out of mining claims, would
seem more applicable.
" In fact, any other rule would allow a malevolent person to
make a trespass whenever he pleased, by settling along the line
of a water-ditch or canal where he supposed, from its location or
construction, it was most likely to give way. There is no doubt
142 INJURIES FROM MINING OPERATIONS. § 94
that the owners of a ditch would be liable for wanton injury or
gross negligence, but not for a mere accidental injury where no
negligence was shown. In such cases, the maxim ^ sic utere^''
etc., must be construed with reference to the rights of all the
parties concerned, and no man can be deprived of the due enjoy-
ment of his property and held answerable in damages for the
reasonable exercise of a right.'' ^
And so where the plaintifEs owned mining claims located
in the bed of a creek, and the defendants owned claims situ-
ated on a hill in the vicinity. The refuse matter washed from
the claims of the defendants was deposited upon the claims
of the plainti£Es to such an extent as to render the working
of them impracticable. The plaintiffs' claims were first lo-
cated, and an action was brought for damages, and for a
perpetual injunction. The maxim of qui prior est in tem-
pore^ potior eat in jure^ was held to apply. As the claims
of the plaintiff were valuable only for the gold which they con-
tained, and the enjoyment of them was in the use necessary to
obtain possession of the gold, it was held that to interrupt the
use of them for that purpose was to take away the opportunity
to enjoy them, and to defeat the object for which they were lo-
cated and taken possession of. This, it was held, could not be
legally done. The defendants were entitled to use their claims
in a lawful manner, but no use could be considered lawful which
precluded the plaintiffs from the enjoyment of their rights.
Esmond v. Chew, 15 Cal. 137, was held not to conflict with
these views.^ In Esmond v. Chew, the true rule was said to be
that' each person mining in the same stream is entitled to use, in
a proper and reasonable manner, both the channel of the stream
and the water flowing therein ; and where, from the situation of
different claims, the working of some will necessarily result in
injury to others, if the injury be the natural and necessary con-
sequence of the exercise of this right, it will be damnum absque
injuria^ and will furnish no cause of action to the party injured.
The reasonableness of the use is a question for the jury, to be
determined upon the facts and circumstances of each particular
case.^ And where owners of a mining claim suffered loss by rea-
iTenney v. Miners' Ditch Co. 7 Cal. 335. « Logan v. DriscoU, 19 Cal. 623.
• Esmond v. Chew, 15 Cal. 137.
§ 95 INJURIES FROM MINING OPERATIONS. 143
son of the breaking of defendants' dam at a high stage of jirater,
and it was found that the dam was '^ well built, and constructed
in a good and workmanlike manner, and of sufficient strength
and capacity to contain the amount of water within it," and
that no negligence on the part of defendants was shown, and
that they used that reasonable care and diligence which prudent
men would have used in the erection and care of the dam, the
defendants were held properly entitled to judgment.^
An owner of a mine at a higher level than an adjoining mine
has a right to work the whole of his mine, in the usual and
proper manner, for the purpose of getting out the minerals in
any part of his mine ; and he is not liable for any water which
flows by gravitation into such adjoining mine from works so con-
ducted. But he has no right, by pumping or otherwise, to be an
agent in sending water from his mine into the adjoining mine.^
§ dS. Upper and lower leveL — In one of the lower courts
in Pennsylvania, it was said that where there are two mining
operations — one owner working on the upper level and one on
the lower level of the same vein — ^the owner of the upper level,
operating in the most approved method and with care, is not
required to control the natural flow of the water downward, and
may work his coal out down to his line, and the maxim of the
common law, sic utere too ut cUienum non loedas^ applies. The
owner of the subjacent level owes a servitude, and must leave a
pillar of coal to support the gangway and keep out the water
from the level above.
Adjoining owners, on the same level of the same. vein, owe no
special duty to each other. When, however, the owner of the
superjacent land has created a servitude upon his land, in favor
of the subjacent owner, such as a right to drive an airway
through his works, and to connect with the surface, such owner,
after he has worked all his coal out and is about to abandon his
workings, must give reasonable notice of this ; and on failure so
1 Everett v. Hydraulic Flume Tunnel Co. 23 Cal. 225; Hofihnan r. Tuolumne
Water Co. 10 Cal. 113; Wolf v. St. Louis Independent Water Co. Ibid. Ml.
* Baiid V. WillUmaon. M Com. B. N. S. 376; 33 Law J. Com. P. 101; 12 Week.
B. ISO; 9 L. T. N. 8. 412; 10 Jur. N. S. 152. See, also, Carstairs v, Taylor, Law B.
6 Ex. 217; Boss v. Fedden, Law B. 7 Q. B. 661. See Marshall v. Cohen, 44 Qa.
4S9; Doupe t;. Genin, 40 K. Y. 119.
144 INJURIES FROM MINING OPERATIONS. § 9o
to do, equity will restrain him from permitting the water to fill
up, if by 80 doing it will destroy the easement, the owner of the
dominant tenement to be at the expense of pumping the water
until the injury can be remedied. Reasonable notice is relative,
and depends upon the work to be performed. A party having
an easement on the land of another may go upon the land for
the purpose of the enjoyment of such easement to its fullest
extent — either to construct, or repair, or secure it from danger
— doing as little damage as possible, and responsible for that dam-
age, for the grant of a privilege carries with it everything nec-
essary for its enjoyment.^
In England, it has been held that the holder of a mining lease
from the crown is not liable to make compensation for the with-
drawal, by percolation into his mine, of water which would
otherwise have flowed into, or, having flowed into, would have
been retained in, the wells and springs of the superjacent land.
This decision went upon the ground that the crown was, in that
particular case, possessed of the mines as of its own original
title in the soil, and had the right to the use of all waters found
thereon, and percolating by natural processes into the mines
when opened.^
§ 96. Mining operations regarded as nuisances. — It
has been said that, in actions brought for nuisance, a difference
exists between those alleged nuisances which produce material
injury to property, and those brought on the ground that the
alleged nuisance is productive of sensible personal discomfort.
In some cases, a submission is required to that amount of
discomfort which may be necessary for the legitimate and
free exercise of the trade of their neighbors, which would not
be required in circumstances the immediate result of which
is sensible injury to the value of property. And so where the
basis of an action was the injury done to certain trees and
shrubs by reason of the noxious vapors arising from smelting-
works, it was held maintainable.^
^Philadelphia & Reading Coal and Iron Co. v. Taylor, Court of Common
Pleas, Schuylkill Co. Penn. 7 Pac. Law Rep. 127.
^Ballacorkish Silver, Lead & Copper Mining Co. v. Harrison, Law Bep. 5
Priv. C. C. 49; 8 Moak. Eng. R. 88; 13 Am. Law R. 592.
3 St. Helen's Smelting Co. u. Tipping, 35 L. J. N. S. Q. B. 66 ; 2 Best. & S. 608 ;
Law Rep. 1 Ch. 66 ; 116 Eng. C. L. lOlKJ.
§97 INJURIES FROM MINING OPERATIONS. 146
Works likelj to become a nuisance may be erected and car-
ried on without objection, the owners of adjoining estates ac-
quiescing ; yet this does not preclude them, when injury arises,
from objecting to an extension of the works, or from pursuing
their legal remedy to recover damages for injury sustained ; as
where works were originally established for the manufacture of
spelter or zinc, and were altered to copper-works, and the fur-
naces increased in number from seventeen to twenty-six.^
In a case in Pennsylvania an injunction was sought to restrain
the defendants from pumping water from their mines and per-
mitting it to flow into a creek, and polluting the water, and to
restrain them from depositing coal, coal-dirt, slate, or other
debris of the mine in such a position that it was subject to be
carried into the stream above the dam of plaintiffs. The court
said that, where large and expensive works are sought to be
stopped, not on account of direct or willful encroachments, but
for something incident to a lawful employment, it should be
made clearly to appear that it is a case for equitable interven-
tion ; that there is no adequate remedy at law, and that, if not
enjoined, irreparable injury or mischief will ensue to the party
complainant. Where a chemical analysis showed that the
water in the vicinity of the plaintiff 's premises was scarcely
affected, and it further appeared that those premises were five
miles below the vicinity of the mining operations, an injunction
was refused.*
§ 97. Frandnlent working. — In Powell «. Aiken, 4 Eay
& J. 848, a trespass had been committed on plaintiff's mine,
and an air-course and level roads made through it underground,
to connect adjoining collieries in mortgage to defendants, and
large quantities of plaintiffs' coal were thereby gotten and re-
moved without their knowledge. The court held that the mort-
1 Bankart v. Houghton, 2S Law J. K. 8. Gh. 473 ; 27 Boav. 426.
< New Boston Goal M. Go. o. Pottsville Water Go. 54 Penn. 164. See, also,
Bichaxds' Appeal, 57 Penn. 105. See ntunerons authorities collected In the
briefs of counsel. See generaUy, as to mining operations regarded as nuisances,
Hays V, Gohoes Co. 2 Comst. 150. Injuries from blasting— negligence amount-
ing to a criminal offense— Beg. v. Mutters, 10 Cox. G. C. 6. Koise from iron- works
—Elliottson t), Feetham, 2 Bing. N. G. 134. As to the maintenance of a nui-
sance in the shape of smelting works, see Boss v. Butler, 4 C. B. Qreene, 19 N.
J. Eq. 294.
D. A. I.— 10.
146 INJURIES FROM MINING OPERATIONS. § 98
gagees, defendants, could not be made accountable for any por-
tion of the coal removed by their mortgagor while they allowed
him to remain in possession, notwithstanding the proceeds of
the coal, so wrongfully removed by him, had found their way
week by week, but without notice of the fraud, into defendants'
hands ; and notwithstanding they continued the use of the air-
course and roads after taking possession, and retained in their
employment, as manager of the collieries, the person by whose
agency the fraud had been perpetrated. The court would not
give plaintiffs compensation, in respect of consequential injury,
by reason of large portions of their coal being rendered unwork-
able and useless to them, but held that the mortgagees could
not be allowed to retain the user of the air-course or roads, al-
though the continuance of that user might be no special injury
to the plaintiffs, but that, not having themselves made such
apertures, they could not be ordered to fill them up. All the
proceeds having been traced to the mortgagees, and no portion
retained by the agent, the latter could not, in a court of chan-
cery, be made personally chargeable for the value of the coal
removed, notwithstanding his own fraudulent conduct in the
transaction.^
§ 98. Prior possession of lands adjoining mines —
Rights resulting therefrom.— The case of Gribson r. Puchta^
is illustrative of the greatest extent to which the courts of Cali-
fornia went in protecting the possession of the agriculturist as
against the miner. It was an action instituted by the miner to
restrain a person in possession of public land, for agricultural
purposes, from running water upon the mining claims of the
former. The title of both parties was derived from possession
and appropriation, the fee being in the Government. The older
possession, although for agricultural purposes, was held superior
to the younger, although for mining purposes. There was no
attempt on the part of the miners at any entry upon the posses-
sion of the settler ; but the mining claims were simply adjacent
to, not upon nor in the lands of the latter. The water was
1 Powell V. Aiken, 4 Kay & J. 343. See, generally, Powell v. Rees, 7 Ad. &
E. 426; 8 Law J. N. S. Q. B. 47.
a33Oal.310.
§ 99 INJUBIES FROM MINING OPERATIONS. 147
used for the purposes of irrigation. The damage caused to the
mining possession was virtually held to be damnum, ah^que in-
juria. The miners'* rights were said to depend upon the com-
mon-law rules applicable to adjoining land-owners. The settler
having a clear right to irrigate his land, and his use having
been reasonable, no negligence or wanton exercise of the right
being shown, the miner was held to be without remedy.^
§ 99. Right of oldest locator. — The owner of a mining
claim comprising the bed of a ca&on may erect dams across the
bed of the cafion for the purpose of enabling him to work the
same, even if thereby mining claims on the banks of the caQon
belonging to others are flooded, provided the claim in the bed of
the cafion is the oldest location ; and in such a case the injury
sustained by the owner of the bank claim is damnum absque
injuria. A declaration of the owner of a canon claim, before
building the dam, that he will put in a dam that will flood the
claim on the bank of the ca&on, is consistent with the utility or
necessity of the dam in working the cafion. It is not the prov-
ince of a court to question the judgment of the owner of a min-
ing claim as to the manner in which he shall work his claim, so
that the working does not interfere with prior rights acquired
by others.^
1 Gibson v. Pachta, 33 Cal. 310. ^ stone v. Bumpus, 46 Cal. 218.
148 INJURIES TO WATBR BIGHTS. § 100
CHAPTER X.
INJURIES TO WATER RIGHTS — SUBTERRANEAN AND SURFACE
WATERS-ARTIFICIAL WATER-COURSES.
$ 100. Diversion of subterranean streams, hidden springs, and percolating
waters— 'Injuries from mining operations to adjoining lands.
§ 101. Subterranean waters — Percolations diverted by well-digging.
§ 102. Injuries to wells, springs, etc., by mining operations in adjoining soil.
§ 103. Rights of owners of land in subterranean streams and percolations—
Water belonging to the soil.
§ 104. Reasonable use of surface streams.
§ 106. Pollution by sewage, etc.
§ 106. Injuries to artificial water-courses.
§ 107. Artificial \^ater-courses — ^Two classes — Distinctions.
§ 106. Increasing the flow.
§ 100. Diversion of snbtorranean streaxna, hidden
springs, and percolating waters — Injuries from mining
operations to adjoining lands. — An owner of land who, in
mining ore therein, drains water from land of an adjoining
owner, thereby destroying a spring upon it, is not liable in dam-
ages therefor if there be no evidence of malice or negligence.
A land-owner may not negligently or maliciously divert even
an unknown subterranean stream, to the damage of a lower pro-
prietor, but he may drain, mine, or quarry, though in so doing
he interferes with the flow of water in hidden, unknown, under-
ground channels. This matter has been fully discussed in a se-
ries of leading cases upon the subject in England and America,
and we shall now review these decisions as containing a full ex-
position of the law upon the subject. In Pennsylvania, an action
on the case was brought for diverting or destroying a spring of
water on plaintiff's land. The plaintiff owned a tract of land
upon which he and his family resided ; on the land adjacent to
his dwelling there was a large spring of water, which was suffi-
cient to supply all the uses of his family, and was never known
to go dry or be diminished in volume until 1860. In 1847, de-
fendants bought an adjoining tract, for the purpose of mining
§ 100 INJURIES TO WATER BIGHTS. 149
iron ore, about 380 feet distant from the spring. In about 1851
thej dug a pit to mine iron ore^ and mined continually after-
wu'd. They commenced by pumping the water out of the pit
with horse-power. In 1858 or 1859 they procured an engine
with steam -pump, and in the fall or spring of 1860 two steam-
pumps were put up, and when the steam power was in full oper-
ation plaintiff's spring became entirely dry. The spring was
affected and diminished in a short time after they commenced
pumping, but neither the horse-power nor the first steam-pump
diminished the spring. It was only when the largely-increased
power was brought into play that the spring was affected. The
pit was forty feet deep, and about forty yards across ; the bottom
was an oval, fifty by twenty feet ; within forty-eight hours after
the pumping ceased the spring filled, and the water in the spring
was at its natural flow. It required from six to eight feet of
water in the bank before the spring flowed.
There were three distinct streams coming into this pit : one
from the northwest, four or five inches in diameter. Plaintiff 's
spring lay southeast from that. The volume of water pumped
out of the pit exceeded largely the natural flow of plaintiff's
spring. Other springs were similarly affected by the pumps of
defendant. A number of coal-pits were dug in that vicinity —
eighteen or twenty — ^none of which, however, affected the water
of this spring.
The opinion of the court by Strong, J., is interesting and in-
structive, and is as follows : '^ Confessedly the absolute domin-
ion of a proprietor over his land to the center of the earth, is
restrained by the maxim *• sic utere tuo ut alienum non loedas^
but what is an injury? The rightful use of one's land may
cause damage to another, without any legal wrong. An act
done causing damage which the law will redress, must not only
be hurtful, but wrongful. There must be damnum et injuria^
an act not merely hurtful, but an infringement of another's
right. The plaintiff in this case cannot therefore recover, unless
the acts of which he complains were in violation of some rights
which he had upon the lands of the defendants. That an in-
ferior proprietor has a right to the uninterrupted flow of the
water in a surface water-course leading to his land over the land
of an adjoining proprietor, is a familiar principle ; but he has
150 INJURIES TO WAT£R RIGHTS. § 100
no such right to an unknown subterranean stream which feeds
his spring or flows out upon his land. For any flowage in such
a stream, he has, in ordinary cases, no servitude upon the land
of his neighbor, at least he has no natural right to enforce such
a servitude. After the full discussion which this subject re-
ceived in Wheatley v, Baugh, 1 Casey, 528, little remains for
us now to add. In that case it was ruled that where, a spring
depends for its supply upon filtrations or percolations of water
through the land of an owner above, and in the use of the land
for mining or other lawful purposes the spring is destroyed,
such owner is not liable for the damage thus caused to the pro-
prietors of the spring, unless the injury was occasioned by malice
or negligence. To such percolations or filtrations, then, the in-
ferior owner has no right. This was all that was necessary to
the decision of the case.
• " In the opinion delivered by this court, it was said, indeed,
that inferior proprietors may have rights in subtenranean streams,
and those were instanced that in limestone regions often pursue
their course in great volume and power, and then emerging from
their caverns furnish power for machinery, or supply towns and
settlements with water for all the purposes of life. To say that
such streams might be obstructed or diverted, merely because
they run through subterranean channels, would be, said the
court, to forget the rights and duties of man in relation to flow-
ing water. Underground currents of such a description are
exceptional in their nature, and the same reason exists for hold-
ing that a lower proprietor has a right to insist upon their unin-
terrupted flew, as exists in the case of water-courses on the sur-
face. Their existence and their course are generally known.
If, therefore, the owner below has any rights in them, they are
perceptible, and the owner of the land through which they pass
may, in most cases, have the fullest use of his property without
disturbing them. What was said upon these exceptional cases
had been previously, though more guardedly, said in Dickinson
V. The Grand Junction Canal Company, 9 Eng. Law & Eq. 521,
a case decided in the English Court of Exchequer, where a
distinction between water running on the surface and sub-sur-
face streams was asserted, but the court said : *• If the course of
a subterranean stream were well known, as is the case with many
§ 100 INJURIES TO WATEB RIGHTS. 151
which sink underground, pursue for a short space a subterran-
eous course, and then emerge again, it never could be contended
that the owner of the soil under which the stream flowed could
not maintain an action for the diversion of it, if it took place
under such circumstances as would have enabled him to recover
if the stream had been wholly above ground.' Throwing out
of view for the present such exceptional cases, there is a well-
marked distinction between the flowage of water in surface and
sub-surface channels.
" A proprietor of land may, in the proper use of his land for
mining, quarrying, building, draining, or any other useful pur-
pose, cut o£E or divert subterraneous water flowing through it to
the land of his neighbor, without any responsibility to that
neighbor. Some of the grounds for the distinction are clearly
pointed out in Acton v. Blundell, 12 M. & W, 324, and others
may be mentioned. They are that in case of an underground
supply to a spijng or well, or a stream emerging upon land of a
lower proprietor, the water does not flow openly in the sight of
the owner of the soil under which it passes ; that there is there-
fore no reason for implying consent or agreement between the
proprietors of the adjoining lands beneath which underground
currents exist, which is one of the foundations upon which the
law as to surface streams is supposed to be built ; and that for
the same reason no trace of positive law can be inferred. Again,
if the lower proprietor has a right to the undisturbed flowage
of water through subterranean passages in his neighbor's land,
he has the power of preventing that neighbor from using the
water in his own soil, for he cannot use it and return it to its old
passage-way, which he may do in the case of a surface stream.
Such a right, if it exists, also exposes the upper proprietor to
the hazard of incurring fruitlessly heavy expenditures in efEorts
to improve or use his land, since he can have no knowledge, until
after his outlay has been made, that his contemplated use will
interfere with any rights or interests of an adjoining owner. A
surface stream cannot be diverted without knowledge that the
diversion will affect a lower proprietor. Not so with an un-
known subterranean percolation or stream. One can hardly have
rights upon another's land which are imperceptible, of which
neither himself nor that other can have any knowledge. No
152 INJURIES TO WATER RIGHTS. § 100
8uch right can be supposed to have been taken into considera-
tion when either the upper or lower tract was purchased. The
purchaser of lands on which there are unknown sub-surface cur-
rents, must buy in ignorance of any obstacle to the full enjoy-
ment of his purchase indefinitely downwards, and the purchaser
of lands on which a spring rises, ignorant whence and how the
water comes, cannot bargain for any right to a secret flow of
water in another's land. It would seem, therefore, most unrea-
sonable that the latter should have a right to prevent his neigh-
bor from enjoying his own land in the ordinary way, either
by digging wells, cellars, drains, or by quarrying and mining.
A further reason for holding that there is no such right is found
in the indefinite nature and great extent of the obligation which
would be imposed if the right existed. Instances have occurred
where excavations have had the efi^ect of draining land, although
at the distance of several miles. (Gale & Wheatley on Ease-
ments, 178.) Even in the case before us, the mining pit of the
defendants is more than three hundred feet distant from the
plaintiff's spring. These appear to us very sufiUcient reasons
for distinguishing between surface and subterraneous streams,
and denying to inferior proprietors any right to control the flow
of water in unknown subterranean channels upon an adjoiner's
land. They are as applicable to unknown sub-surface streams
as they are to filtrations and percolations through small inter-
stices. Neither can be defined water-courses, though they may
be definable.
*^ The distinction thus founded in reason is recognized by the
law. The civil law adopted it. Thus, in Dig. Lib. 39, Tit. 8, Fr.
1, sec. 12, De aqua et aquce pluvim arcendce : ' Denique Mar-
cellus scribit : Cum eo, qui in suo f undo f odiens vicini f ontem
averterit, nihil posse agi. Nee de dolo actio est ; et sane non
debet habere, si non animo vicino nocendi, sed suum agrum me-
liorem faciendi id fecit.' The common law is the same.
" The leading case of Acton v. Blundell, 12 Mees. & W. 324,
already referred to, asserts it distinctly ; and the distinction be-
tween surface and underground waters, which was there drawn,
was recognized in Dickinson v. The Grand Junction Canal Co., 9
Eng. L. & E. 520, as well as in our own case of Wheatley t?.
Baugh. So in Ellis v. Duncan, 21 Barb. 230, it was ruled that
§ 100 INJUBI£8 TO WATER BIGHTS. 153
the owner of a farm may dig a ditch to drain his land, or open
and work a quarry upon it, although by so doing he interrupts
one of the underground sources of a spring on his neighbor's
land; and it was said : ^The rule that a man has the right to
the free and absolute use of his property, so long as he does not
directly invade that of his neighbor, or consequentially injure his
perceptible and dearly defined rights^ is applicable to the inter-
ruptions of the sub-surface supplies of a stream by the owner of
the soil, and the damage resulting from it is not the subject of
legal redress.'
^^ The same thing was decided in Eoath v. Driscoll, 20 Conn.
633, 642 ; and in Brown v. lUius, 27 Conn. 84, it was more em-
phatically ruled, and the court adopted the mode of expression
used by one of the counsel in Acton v. Blundell, saying, in re-
gard to subterranean streams and currents : ^ There is not any
JUS cUienum on the part of the owner of the other lands, and
therefore the maxim sic utere tuo ut cUienum non Icedas does
not apply.' Nor are there any well-considered decisions which
are inconsistent with these. Whetstone v. Bowser, 6 Casey, 69;
was a case where the stream diverted was partly on the surface
and partly underground. It was a well-known stream, and the .
diversion complained of was on the surface. In Smith v. Adams,
6 Paige, 433, the stream which supplied the spring was known,
and the water was taken from a place just above the point where
it had emerged, not for the enjoyment of the land where it
had flowed, but for the use of another tract at some distance
from it.
" We think, therefore, that the learned judge of the Common
Pleas misapprehended what had been ruled in Wheatley v. Baugh.
The defined water-courses there spoken of, which a man may not
divert to the hurt of an inferior proprietor, are not the hidden
streams of which the owner of the soil through which they pass
can have no knowledge until they have been discovered by ex-
cavations made in the exercise of his rights of property. There
are known streams to which, if the lower proprietor has any
rights, they are perceptible, and require no sub-surface explora-
tion before their course can be defined. We are not, however,
to be understood as intimating that an owner may maliciously or
negligently divert even an unknown subterranean stream to the
164 INJURIES TO WATER BIGHTS. § 101
damage of a lower proprietor. But in the enjoyment of his land
he may cut drains, or mine, or quarry, though in so doing he
interfere with the flowage of water in hidden, unknown, under-
ground channels.
'' Applying these principles to the present case, we are con-
strained to say we see no evidence of malice or negligence
on the part of the defendants. Mining on their land, as they
did, was no more than the exercise of their legal rights. If, in
so doing, they interrupted an underground stream which sup-
plied the plaintiff 's spring, it was damnum absque injuriOj and
there was no evidence of the existence of such a known, well-
defined water-course underground in the land of the defendants
as will entitle the plaintiff to maintain an action against them
for diverting it by their mining operations, and thus destroying
the spring." i
§ 101. Subterranean waters — ^PercolationB diverted by
digging virells, etc. — ^If a person digs his well on his own land,
in good faith, for the obtaining of water for his own domestic
uses, he is not liable for any damage which incidentally results
to the plaintiff by reason of thereby diverting the water which
had been accustomed to percolate or flow, in an unknown sub-
terranean current, into the plaintiff's spring. Thus an action
of case was brought against the defendant for digging a well
on his own land, whereby the waters of a living spring upon
that of the plaintiff were diverted.^ Neither party supposed
the well would have that effect when it was dug. The plaintiff
supplied his house and barn by pipes from his spring, the water
flowing naturally into tanks. In sinking his well the defend-
ant's workmen struck a vein of water that filled the well and
overflowed the yard ; to dispose of the water, a drain was made,
a foot or two below the top of the well, so as to carry the over-
flow to the street gutter — ineffectual attempts having been made
in various ways to check the flow. The result was, that the
plaintiff 's natural supply was cut off, and he had to pump into
^Haldeman v. Bruckhart, 45 Pa. 514. See Cole Silver M. Co. v. Virginia Water
Go. 1 Sawyer, 470. As to underground ditches, see Livingston v. McDonald, 21
Iowa, 160.
> Chase v. Silverstone, 62 Me. 175. See, also, Morrison v. Company, 67 Me. 358.
§ 101 INJURIES TO WATER RIGHTS. 156
his spring. This spring was shown to have existed there for
thirty or forty years at least.
Virgin, J., delivering the opinion, said : " This court has had
frequent occasion to enunciate the rules regulating the relative
rights and liabilities of riparian proprietors, and apply the prin-
ciple of ^ reasonable use ' to the peculiar circumstances of each
particular case ; and in two cases — ^Lansil v. Bangor, 51 Maine,
621, and Grreely v. Maine Cen. R. R. Co. 53 Maine, 200 — have
determined the rights and liabilities of land-owners in relation
to mere surface water. But this is the first case which has
called upon us to declare the law which governs proprietors of
adjacent lands in relation to sub -surface waters not gathered
into a fixed, known channel.
** Is a land-owner, who, by digging a well in his own land for
his own domestic purposes, thereby diverts underground waters
and thus prevents them from percolating into a coterminous
proprietor's spring, to the owner's damage, liable for such dam-
age ; or does such a diversion fall within one of those large and
distinct classes of cases cropping out over the whole domain of
^ wrongs independent of contract,' in which appreciable damage
and loss are incidentally occasioned to an individual by the act
of another, and yet no redress is given him by the law, and to
which the law applies the phrase — ' damnum absque injuria ' ?
We feel compelled, by the vastly preponderating weight of
authority, to place the decioion upon the latter alternative ; and
shall content ourselves with briefly alluding to a few of the
principal adjudicated cases, without any extended discussion of
the principles upon which they are based.
^^An eminent jurist h^ well said that the doctrine of the civil
law — ^ cum eo qui in sua f odiens, vicini f ontem avertit, nihil
posse agi ; nee de dolo : Et sane actionem non debet habere ; si
non animo vicino nocendi, sed suum agrum meliorem faciendi
id fecit,' or, (as translated by Maule, J., in Acton v. Blundell,
12 Mees. & W. 885) ^ if a man digs a well in his own field,
and thereby drains his neighbor's, he may do so unless he does
it maliciously '—contains the germ of the present English and
American law upon the subject, so far as that may be regarded
as settled. Such was the view of the court in Greenleaf v.
Francis, 18 Pick. 117, as expressed by Putnam, J. : * By the
166 INJUBIEB TO WATER BIGHTS. § 101
common law, the owner of the soil may lawfully occupy the
space above as well as below the surface, to any extent which
he pleases, in the absence of any grant, agreement, or statute,
or police regulation to the contrary. * * These rights should
not be exercised from mere malice. * * He may obstruct
the light and air above, and cut off the springs of water below
the surface. * * The defendant dug his well in that part of
his own ground where it would be most convenient for him. It
was a lawful act, and although it may have been prejudicial to
the plaintiff, it is damnum absque injuria,'^
*' So, in Parker v. B. & M. R. R. 3 Cush. 107, in discussing the
relative rights of owners of lands, C. J. Shaw, on page 114,
said : ' Each owner of land has a right to make a proper use
of his own estate, and sinking a well upon it is such proper
use ; and if water, by its natural current, flows from one to the
other, and a loss ensues, it is damnum absque injuria.^
^^ The first leading and most frequently cited English case,
wherein the rules regulating riparian rights were held inapplica-
ble to percolating waters, is that of Acton v. Blundell, 12 Mees.
& W. 335, decided in 1843, in the Exchequer Chamber. The
plaintiff's cotton-mill was carried by water raised from a well
in his own land. Subsequently, the defendant sunk a coal-
pit in his own land, one-half mile from the plaintiff's well,
whereby the latter's supply of water was destroyed. Tindal,
C. J., after discussing the known ntate and condition of water
in surface-channels and the well settled rules governing riparian
rights, says : ' But in the case of a well sunk by a proprietor in
his own land, the water which feeds it from a neighboring soil
does not flow openly in the sight of the neighboring proprietor,
but through the hidden veins of the earth beneath its surface ;
no man can tell what changes these underground sources have
undergone in the progress of time ; it may be that it is only
yesterday's date that they first took the course and direction
which enabled them to supply the well ; again, no proprietor
knows what portion of water is taken from beneath his own
soil ; how much he gives originally, or how much he transmits
only, or how much he receives ; on the contrary, until the well
is sunk, and the water collected by draining into it, there cannot
properly be said, with reference to the well, to be any flow of
§ 101 INJURIES TO WATER RIGHTS. 157
water at all. * * If the man who sinks the well in his own
land can acquire by tha>t act an absolute and indefeasible right
to the water that collects in it, he has the power of preventing
his neighbor from making any use of the spring in his own soil
which shall interfere with the enjoyment of the well. He has
the power still further of debarring the owner of the land in
which the spring is &rst found, or through which it is transmit-
ted, from draining his land for the proper cultivation of his
soil. * * The advantage on one side, and the detriment to
the other, may bear no proportion. The well may be sunk to
supply a cottage, or a drinking-place for cattle, whilst the owner
of the adjoining land may be prevented from mining metals and
minerals of inestimable value. And, lastly, there is no limit of
space within which the claim of right to an underground spring
can be confined.' The opinion concludes as follows : '^ We think
this case, for the reasons given, is not to be go^pmed by the
law which applies to rivers and flowing streams, but that it
rather falls within the principle which gives the owner of
the soil all that lies beneath the surface; that the land im-
mediately below is his property, whether it is solid rock, or
porous ground, or venous earth, or piart soil, part water; that
the person who owns the soil may dig therein, and apply all
that is there found to his own purposes at his free will and
pleasure ; and that if, in the exercise of such right, he intercepts
and drains off the water collected from underground springs
in his neighbor's well, this inconvenience to his neighbor falls
within the description of damnum abaqtie injuria^ which cannot
become the ground of action.'
^*In 1852, the Court of Exchequer, in Dickinson v. Grrand
June. Canal Co. 7 Exch. 282, held th4t, at common law, the de-
fendants, by sinking a well upon their own premises and there-
by preventing water from percolating in its natural course into
the river on which the plaintiff's mill was situated, to his dam-'
age, were liable in an action therefor. But the same court,
four years later, in Broadbent v. Ramsbotham, 11 Exch. 602,
held that where the plaintiff's mill had, for more than fifty
years, been worked by the stream of a brook supplied by the
water of a pond filled by rain, a shallow well supplied by sub-
terranean waters, a swamp and a well formed by a stream spring-
158 INJURIES TO WATER RIGHTS. § 101
ing out of the side of a hill, the waters of all which occasion-
ally overflowed and ran down the defendant's land, in no definite
channel into the brook — the plaintiff had no right, as against
the defendant, to the natural flow of any of the waters. Alder-
son, B., in the opinion of the court, on page 614, says : ^ No
doubt, all the water falling from heaven, and shed upon thesur-
face of a hill, at the foot of which a brook runs, must, by the
natural force of gravity, find its way to the bottom and so into
the brook ; but this does not prevent the owner of the land on
which this water falls from dealing with it as he may please,
and appropriating it. He cannot, it is true, do so if the water
has arrived at, and is^ flowing in, some natural channel already
formed. But he has a perfect right to appropriate it before it
arrives at such a channel.'
^^ But the English case which received the most consideration
is Chasemore v. Richards, Clerk to Croydon Local Board of
Health, 2 H. & N. 168 ; S. C. 7 H. L. Cas. 849. The plain^
iff's mill had been propelled more than sixty years by the river
Wandle, having its rise in Croydon, and being fed largely
by the rainfall on a large territory, including the town. The
rainfall percolated through the ground to the river. The de-
fendants sunk a deep well in their land, a quarter of a mile from
the rise of the river, and by pumping the water for supplying
the town, thereby, abstracted and diverted so much of the under-
ground water, which would otherwise have found its way into
the river, as appreciably retarded the mill. In an action for the
diversion, the Court of Exchequer, in 1856, gave judgment to
the defendants, upon the authority of Broadbent v> Ramsbotham,
supra. The case then went to the Exchequer Chamber, where,
in 1857, th udgment below was aflSrmed, all the judges con-
curring in the opinion pronounced by Creswell, J., with the
exception of Coleridge, J., who delivered a dissenting opinion,
basing it upon the maxim sic uter^ etc. The case then went
to the House of Lords, where, in 1859, after solemn argument,
the former judgment was reaflSirmed by the unanimous opinion
of all the judges summoned, and by the House of Lords, with
the exception of Lord Wensleydale, who hesitated to sustain,
in its full extent, the doctrine of the judges.
" Wightman, J., speaking for the judges in relation to the
§ 101 INJUBIES TO WATER RIGHTS. » 159
right contended for by the plaintiff, says : ^ It is impossible to
reconcile such a right with the natural and ordinary rights of
land-owners, or to fix any reasonable limits to the exercise of
such a right. * * Such a right would interfere with, if not
prevent, the draining of land by the owner. Suppose a man
sunk a well upon his own land, and the amount of percolating
water which fotbid its way into it had no sensible effect upon
the quantity of water in the river, no action would be maintain-
able ; but if many land-owners sank wells upon their own lands,
and .thereby absorbed so much of the percolating water by the
united effect of all the wells as would sensibly and injuriously
diminish the quantity of water in the river, could an action be
maintained against any one of them? and if any, which? for
no action could be maintained against them jointly. * * The
defendant's well is only a quarter of a mile from the river ; but
the question would have been the same if the distance had been
twenty miles, provided the effect had been the same.' The
opinion cites approvingly Broadbent v. Ramsbotham and Acton
V. Blundell, and overrules Dickinson v. Grand June. Can. Co.
Lord Chelmsford held the opinion — ' the principles which apply
to flowing water in streams or rivers are wholly inapplicable to
water percolating through underground strata which has no
certain course, no defined limits, but which oozes through the
soil in every direction in which the rain penetrates. There is no
difficulty in determining the rights of the different proprietors
to the usufruct of the water in a running stream. Whether it
has been increased by floods or diminished by drouth, it flows
on in the same ascertained course. * * But the right to per-
colating underground water is necessarily of a very uncertain
description. When does this right commence ? Before or after
the rain has found its way to the ground? If the owner of
land through which the water filters cannot intercept it in its
progress, can he prevent its descending to the earth at all, by
catching it in tank or cistern ? And how far will the right of
this water supply extend?' Lord Cranworth said if the doc-
trine contended for by the plaintiff should prevail, ^it would
always require the evidence of scientific men to state whether
or not there had been interruption. * * It is a process of
nature not apparent ; and therefore such percolating water has
160 , INJURIES TO WATER RIGHTS. § 101
not received the protection which water running in a natural
channel on the surface has always received. If the argument
of the plaintiff was adopted, the consequence would be that
every well that ever was sunk would have given rise or might
give rise to an action.'
" So, in 1860, in New River Co. v. Johnson, 2 El. & E. 484,
(105 E. C. L.) in an action by the respondent to recover dam-
ages (1) for preventing water from percolating underground
into her well; and (2) for abstracting from the well, water
which had already so percolated into or which was in it.
Cockbum, C. J., said: ^As to the first ground of complaint,
Chasemore v. Richards is an express authority that it would not
constitute any cause; and as to the second ground, Acton v.
Blundell is as plain an authority that no action would have lain
in respect of that cause.' Wightman, J., expressed similar
views, adding that he thought Chasemore v, Richards decisive
of both grounds, while Crompton, J., said: * There may be
some distinction between a case of water running in a defined
stream, and the present case of water merely percolating, as to
which Acton v. Blundell shows conclusively that no action will
lie ; and that the only remedy of the owner of a well from which
such water has been abstracted, is to sink the well deeper.'
^^ Again, in 1868, the subject came before the Queen's Bench,
in Regina v. Metropolitan Board of Works, 8 Best & Smith,
708 (118 E. C. L.). A part of the prosecutor's estate was sit-
uate upon a deep bed of gravel, imbedded in a basin of clay.
In the gravel-bed, on the lower part of the premises, there had
existed, from time immemorial, a pond fed by several powerful
springs at its bottom ; the water, overflowing one edge of the
clay-basin, formed a rivulet, which ran through the grounds and
supplied ornamental ponds therein, and which was used for the
cattle and for supplying the garden. The defendants, in con-
structing a sewer along and under a highway, cut through the
gravel-bed and basin of clay, at a distance from the prosecutor's
premises varying from seventeen to one hundred and fifty-three
yards, the immediate effect of which was to prevent the springs
there from finding their way into the pond, so that it, together
with the rivulet and other ponds, became dry. The judges
unanimously held that the case was ^ in principle not to be distin-
§ 101 INJUKIE8 TO WATER RIGHTS. 161
guished from that of Chasemore v, Richards,' quoting the par-
agraph from Justice Wightman's opinion which we have tract-
scribed above, and adding : * We entirely concur in this view of
the law, and consider it to be strictly applicable to the circum-
stances of the present case.' Chasemore v. Richards was also
recognized as sound law by Cockburn, C. J., and the other
judges of the Queen's Bench, in Hodgkinson v. Ennor, 4 Best
& Smith, 229, (116 E. C. L.) decided in 1863. Again, in 1869,
in Popplewell v. Hodgkinson, Cockburn, C. J., speaking for all
the Court, said : ^ Although there is no doubt that a man has no
right to withdraw from his neighbor the support of adjacent
soil, there is nothing at common law to prevent his draining that
soil, if for any reason it becomes necessary or convenient for
him to do so.' (4 Law R. Ex. 251.)
This subject has been thoroughly examined in several of the
States of this Union, and the doctrine of the English Courts
adopted. (Frasier v. Brown, 12 Ohio St. R. 294 ; Routh v.
Driscoll, 20 Conn. 583; Brown v. Blius, 25 Conn. 598; Ellis v.
Duncan, 21 Barb. 230; Wheatleigh v. Baugh, 25 Penn. St.
528 ; Haldeman v. Bruckhart, 45 Penn. St. 518 ; Chatfield v.
Wilson, 28 Vt. 49 ; Clark v. Conroe, 88 Vt. 469.)
" We are aware that a contrary doctrine has been held by a
few of the most learned courts in this country, and among
them that of New Hampshire. In Bassett v. Salisbury Manf .
Co. 48 N. H. 569, and again in Swett v. Cutts, 50 N. H. 439,^
the subject was most elaborately and candidly discussed, and
the cases reviewed. But we feel better satisfied with the
reasoning in the cases from which we have made such liberal
extracts, and the American cases, which we have simply cited,
than with the views expressed by the courts holding the other
doctrine ; and we see less difficulties in applying the rule of
CUJU8 aolunij etc., than thai of sic uteres etc., to cases of this
character. The tendency of all the authorities is against the
acquisition of a prescriptive right in cases of this nature, and
the plaintiff's counsel has abandoned that point. There is no sat-
isfactory evidence in this case that the injury to the plaintiff's
^In a comparatively late case in England, an injanction was granted against
the diversion of a subterraneous d^ned stream, (Orand Sec. Company v. Shu-
gar, L. B. 6 Gh. 483. See, also, Dudden v. Guardians, 38 Eng. L. & £q. 526.)
D. A. I.— 11.
162 INJUBIES TO WATEB BI6HT8. § 101
«
spring was caused otherwise than by a diversion of the under-
^ound percolating water, caused by the digging of the defend-
ant's well. There is no evidence of malice on the part of the de-
fendant in the digging or otherwise constructing of his welL
Whether or not malice on his part would make any difference
in the decision of the case, it is unnecessary for us to consider.
^^ Our conclusion, therefore, is that defendant having dug his
well in good faith, for the purpose of obtaining water for do-
mestic uses, is not liable for any damage which incidentally re-
sulted to the plaintifE, by reason of thereby diverting the water
which had been accustomed to percolate, or flow in an unknown
subterranean current, into the plaintiff's spring."
Chasemore v. Richards, 7 H. L. Cas. 349,^ is another leading
case on the subject, and it was there held that the principles
which regulate the rights of owners of land in respect to w^ter
flowing in known and defined channels, whether upon or below
the surface of the ground, do not apply to underground water
which merely percolates through the strata in no known chan-
nels. The case was stated by one of the justices as follows :
^' It appears, by the facts that are found in this case, that the
plaintiff is the occupier of an ancient mill on the river Wandle,
and that, for more than sixty years before the present action, he,
and all the preceding occupiers of the mill, used and enjoyed, as
of right, the flow of the river for the purpose of working their
mill. It also appears that the river Wandle is, and always has
been, supplied above the plaintiff 's mill, in part, by the water
produced by the rainfall on a district of many thousand acres
in extent,, comprising the town of Croydon and its vicinity.
The water of the Rainfall sinks into the ground to various
depths, and then flows and percolates through the strata to the
river Wandle,* part rising to the surface, and part finding its
way underground in courses which* continually vary. The de-
fendant represents the members of the Local Board of Health
of Croydon, who, for the purpose of supplying the town of
Croydon with water, and for other sanitary purposes, sank a
1 The doctrine of Chasemore v. Bichards has been supported hy the following
American cases besides those cited in the text : Greenleaf v, Francis, 18 Pick.
117; Wilson v. New Bedford, 106 Mass. 261; Boath v. DriscoU, 20 Conn. 533;
Chatfleld v. Wilson, 28 Vt. 49; Bliss v. Greely, 45 N. Y. 671; Mosier r. Caldwell,
7 Nevada, 363; Hanson v. McCne, 42 Cal 303.
§ 101 INJUBIfiS TO WATER BIGHTS. 168
well in their own land in the town of Croydon, and about a
quarter of a mile from the river Wandle, and pumped up large
quantities of water from their well for the supply of the town
of Croydon ; and by means of the well and the pumping, the
Local Board of Health did divert, abstract, and intercept under-
ground water, but underground water only, that otherwise would
have flowed and found its way into the river Wandle, and so to
the plaintiff 's mill ; and the quantity so diverted, abstracted,
and intercepted was sufficient to be of sensible value toward the
working of the plaintiff's mill. The question is, whether the
plaintiff can maintain an action against the defendant for this di-
version, abstraction, and interception of the underground water.*'
Wightman, J., said : " The law respecting the right to water
flowing in definite, visible channels may be considered as pretty
well settled by several modern decisions, and is very clearly
enunciated in the judgment of the Court of Exchequer in the
case of Embrey v. Owen, 6 Exch. 858. But the law, as laid
down in those cases, is inapplicable to the case of subterranean
water not flowing in any definite channel, nor indeed at all, in
the ordinary sense, but percolating or oozing through the soil,
more or less, according to the quantity of rain that may chance
to fall. The inapplicability of the general law respecting rights
to water to such a case has been recognized and observed upon
by many judges whose opinions are of the greatest weight and
authority. In the case of Rawstron v. Taylor, 11 Exch. 882,
Baron Parke, in the course of delivering judgment, says : ^ This
is the case of common surface water flowing in no definite chan-
nel, though contributing to the supply of the plaintiff's mill.
The water having no definite course, and the supply not being
constant, the plaintiff is not entitled to it. The right to have a
stream running in its natural direction does not depend upon a
supposed grant, but is jure naturcB.^
^^ In delivering the judgment of the Court of Exchequer in
the subsequent case of Broadbent v. Kamsbotham, 11 Exch. 602,
615, Baron Alderson observes that *' all the water falling from
heaven, and shed upon the surface of a hill, at the foot of which
a brook runs, must by the natural force of gravity find its way
to the bottom, and so into the brook ; but this does not prevent
the owner of the land on which it falls from dealing with it as
164 INJURIES TO WATEB RIGHTS. § 101
he may please, and appropriating it. He cannot do so if the
water has arrived at and is flowing in some definite channel.
There is here no water-course at all.' In the earlier case of
Acton V. Blundell, 12 Mees. & W. 824, the Court of Exchequer
was of opinion that the owner of the surface might apply sub-
terranean water as he pleased, and that any inconvenience to
his neighbor from so doing was damnum absque injuria^ and
gave no ground of action.
" There is no case or authority of which I am aware that can
be cited in support of the position contended for by the plaintiff,
or in which the right to subterranean percolating water adverse
to that of the owner of the soil came in question, except the
Nisi Prius case of Balston v, Bensted, 1 Camp. 463, and Dickin-
son V. The Grand Junction Canal Company, 7 Exch. 282.
"Iq the first of these cases. Lord EUenborough is reported
to have expressed an opinion that twenty years' enjoyment
of the use of water in any manner afforded an exclusive pre-
sumption of right. This opinion amounted only to the dictum
of an eminent judge, followed by no decision upon the point,
for the case ended in the withdrawal of a juror, and is directly
at variance with, the judgment of the Court of Exchequer in
the other case, upon which the plaintiff relies, of Dickinson v.
The Grand Junction Canal Company, in which the Court de-
dared (7 Ex. 299) ' that the right to have a stream running
in its natural course is not by a presumed grant from long acqui-
escence on the part of the riparian proprietors above and below,
but is ex jure naturae^ and an incident of property as much as
the right to have the soil itself in its natural state, unaltered by
the acts of a neighboring proprietor, who cannot dig so as to
deprive it of the support of his land.'
"In the case of Dickinson .v. The Grand Junction Canal
Company, the very question now before your lordships' house
arose, and that case is relied upon by the plaintiff as a decisive
authority in his favor. The Court of Exchequer was of opin-
ion that the company, by digging a well and pumping out the
water, and so intercepting and diverting underground and per-
colating water which would otherwise have gone into a stream
which flowed to the plaintiff's mill, and was applied to the
working of it, had become liable to an action for the infringe-
§ 101 INJURIES TO WATER RIGHTS. 165
ment of a right at common law. In the same judgment, how-
ever, the court refers (7 Ex. 300) to the case of Acton v. Blun-
dell, 12 Mees. & W. 824, apparently with approbation, and
observes : ' That the existence and state of underground water
is generally unknown before a well is made ; and after it is made
there is a difficulty in knowing, certainly, how much, if any, of
the water of the well, when the ground was in its natural state,
belonged to the owner in right of his property in the soil, and
how much belonged to his neighbor. These practical uncer-
tainties make it very reasonable not to apply the rules which
regulate the enjoyment of streams and waters above ground to
subterranean waters.' But the Court, without at .all adverting
to this distinction which it had adopted, treated the case of un-
derground percolating water as governed by the same rules as
would obtain in the case of visible streams and water-courses
above ground ; and no remark or comment was made or reason
assigned by the Court for arriving at a conclusion which not
only does not seem warranted by the premises previously
adopted, but is in effect hardly consistent with them. The
plaintiff in that case was held to have a cause of action, inde-
pendently of any infringement of a right at common law, by
reason of the breach of an agreement between the parties and
of an act of Parliament ; and a decision upon the right at com- -
mon law seems not to have been necessary for determining the
suit between the parties. These considerations greatly weaken
the effect of the case of Dickinson v. The Grand Junction Canal
Company as an authority against the defendant upon the point
now in question, but it is an authority in his favor to show that
a right to water is not by a presumed grant from long acquies-
cence, but if it exists at all, iajure naturce, and that the rules of
law that regulate the rights of parties to the use of water are
hardly, or rather not at all, applicable to the case of waters per-
colating underground.
^^ In such a case as the present, is any right derived from the
use of the water of the River Wandle for upward of twenty
years for working the plaintiff's mill ? Any such right against
another, founded upon length of enjoyment, is supposed to have
originated in some grant which is presumed from the owner of
what is sometimes called the servient tenement. But what
166 INJURIES TO WATER BIGHTS. § 101
grant can be presumed in the case of percolating waters, de-
pending upon the quantity of rain falling or the natural mois-
ture of the soil, and in the absence of any visible means of
knowing to what extent, if at all, the enjoyment of the plaint-
iff's mill would be affected by any water percolating in and out
of the defendant's or any other land ? The presumption of a
grant only arises where the person against whom it is to be
raised might have prevented the exercise of the subject of the
presumed grant ; but how could he prevent or stop the perco-
lation of water ? The Court of Exchequer, indeed, in the case
of Dickinson v. The (xrand Junction Canal Company, expressly
repudiates the notion that such a right as that in question can
be founded on a presumed grant, but declares that with respect
to running water it is jure naturcB. If so a fortiori^ the right,
if it exists at all, in the case of subterranean percolating water,
is jure naturce^ and not by presumed grant, and the circum-
stance of the mill being ancient would in that case make no
difference.
*'*' The question then is, whether the plaintiff has such a
right as he claims jure naturce to prevent the defendant sinking
a well in his own ground at a distance from the mill, and so
absorbing the water percolating in and into his own ground be-
neath the surface, if such absorption has the effect of diminish-
ing the quantity of water which would otherwise find its way
into the river Wandle, and by such diminution affects the work-
ing of plaintiff's mill. It is impossible to reconcile such a right
with the natural and ordinary rights of land-owners, or to fix
any reasonable limits to the exercise of such a right. Such a
right as that contended for by the plaintiff would interfere with,
if not prevent, the draining of land by the owner. Suppose, as
it was put at the bar in argument, a man sank a well upon his
own land, and the amount of percolating water which found a
way into it had no sensible effect upon the quantity of water in
the river which ran to the plaintiff's mill, no action would be main-
tainable ; but if many land-owners sank wells upon their own
lands, and thereby absorbed so much of the percolating water,
by the united effect of all the wells, as would sensibly and in-
juriously diminish the quantity of water in the river, though no
one well alone would have that effect, could an action be main-
§ 101 INJUBIES TO WATER BIGHTS. 167
tained figainst any one of them? and if any, which? for it is
clear that no action could be maintained against them jointly.
^^ In the course of the argument, one of your lordships [Lord
Brougham] adverted to the French artesian well at the Abat-
toir de Ghrenelle, which was said to draw part of its supplies
from a distance of forty miles, but underground, and, as far as
is known, from percolating water. In the present case, the
water which finds its way into the defendant's well is drained
from and percolates through an extensive district, but it is im-
possible to say how much from any part. If the rain which has
fallen may not be intercepted whilst it is merely percolating
through the soil, no man could safely collect the rain-water as
it fell into a pond ; nor would he have a right to intercept its
fall, before it reached the ground, by extensive roofing, from
which it might be conveyed to tanks, to the sensible diminution
of water which had, before the erection of such Impediments,
reached the ground, and flowed to the plaintiff's mill. In the
present case, the defendant's well is only a quarter of a mile
from the river Wandle ; but the question would have been the
same if the distance had been ten or twenty or more miles dis-
tant, provided the effect had been to prevent underground perco-
lating water from finding its way into the river, and increasing
its quantity, to the detriment of the plaintiff's mill. Such a
right as that claimed by the plaintiff is so indefinite and unlim-
ited that, unsupported as it is by any weight of authority, we
do not think that it can be well founded, or that the present
action is maintainable ; and we therefore answer your lordships'
question in the negative."
Lord Chelmsford also agreed with this view, and said: "The
question in this case is, whether the plaintiff in error is entitled
to claim against the defendant the right to have the benefit of
the rain-water which falls upon a district of many thousand
acres in extent, and percolates through the strata to the river
Wandle, increasing the supply of water in the river, and being
of sensible value in and toward the working of an ancient mill
belonging to the plaintiff. The acts of the defendant by which
this underground water was interrupted and prevented from
finding its way into the river, were done upon his own land.
" It was conceded by the plaintiff, in argument, that a land-
168 INJURIES TO WATEB RIGHTS. § 101
owner had a limited and qualified right to appropriate water,
the course of which is invisible and undefined, exactly to the
same extent and for the same purposes as he would be entitled
to use water flowing in a defined and visible channel. This,
it was contended, must be confined to a reasonable use of the
water for domestic and agricultural purposes, and perhaps, (it
was said) according to the opinion of Chancellor Kent, for the
purposes of manufacture also. It must further be admitted
(and it appeared to be so in argument) that in addition to these
direct uses to which the water may be diverted, if, in the regu-
lar course of mining operations, the percolation of underground
water is arrested in its progress, and prevented reaching a point
where it would have increased a supply which had previously
been usefully employed by an adjoining land -owner, he can
maintain no action for the loss of the water thus cut off from
him. A distinction was suggested between such a use as the
one last mentioned, where the interception of the water was
merely the consequence of operations upon a party's own land,
and the present, where the very end and object of the acf done
was to collect and appropriate the water. And upon the state
of things existing in this case, a further distinction was insisted
upon between a party sinking a well in his own land for domestic
or agricultural or manufacturing purposes, and a public board
or a water company doing the same thing for sanitary purposes,
or for supplying the inhabitants of the neighborhood with water.
Before, however, the plaintiff can question the act of the de-
fendant, or discuss with him the reasonableness of the claim to
appropriate this underground water for these purposes, (what-
ever they may be) he must first establish his own right to have
it pass freely to his mill, subject only to the qualified and re-
stricted use of it to which each owner may be entitled through
whose land it may make its way. It seems to me that both prin-
ciple and authority are opposed to such a right.
" The law as to water flowing in a certain and definite channel
has been conclusively settled by a series of decisions, in which
the whole subject has been very fully and satisfactorily con-
sidered, and the relative rights and duties of riparian proprie-
tors have been carefully adjusted and established. The princi-
ple of these decisions seems to me to be applicable to all water
§ 101 INJURIES TO WATER BIGHTS. 169
flowing in a certain and defined course, whether in an open vis-
ible stream or in a known subterranean channel ; and I agree
with the observation of Lord Chief Baron Pollock, in Dickin-
son V. The Grand Junction Canal Company, 7 Ex. 300, 301,
* that if the course of a subterranean stream were well known,
as is the case with many which sink underground, pursue for
a short space a subterraneous course, and then emerge again, it
never could be contended that the owner of the soil under which
the stream flowed could not maintain an action for the diversion
of it, if it took place under such circumstances as would have
enabled him to recover had the stream been wholly above
ground.' But it appears to me that the principles which apply
to flowing water in streams or rivers, the right to the flow of
which in its natural state is incident to the property through
which it passes, are wholly inapplicable to water percolating
through underground strata, which has no certain course, no de-
fined limits,' but which oozes through the soil in every direction
in which the rain penetrates. There is no difficulty in determin-
ing the rights of the different proprietors to the usufruct of the
water in a running stream. Whether it has been increased by
floods or diminished by drouth, it flows on in the same ascer-
tained course, and the use which every owner may claim is only
of the water which has entered into and become a part of the
stream. But the right to percolating underground water is
necessarily of a very uncertain description. When does this
right commence ? Before or after the rain has found its way to
the ground ? If the owner of land through which the water
filters cannot intercept it in its progress, can he prevent its de-
scending to the earth at all, by catching it in tanks or cisterns ?
And how far will the right to this water supply extend ?
" In this case, the water which ultimately finds its way to the
river Wandle is strained through the soil of several thousand
acres. Are the most distant land-owners, as well as the adjacent
ones, to be bound, at their peril, to take care to use their lands
so as not to interrupt the oozing of the water through the soil to
a greater extent than shall be necessary for their own actual
wants ? For, with Mr. Justice Coleridge, I do not see here ' how
the ignorance ' which the land-owner has of the course of the
springs below the surface, of the changes they undergo, and
170 INJURIES TO WATER BIGHTS. § 101
of the date of their commencement, * is material in respect of
a right which does not grow out of the assent or acquiescence
of the land-holder, as in the case of a servitude, but out of the
nature of the thing itself.' (2 Hurl. <fe N. 191.)
^^ This distinction between water flowing in a definite channel,
and water, whether above or under ground, not flowing in a
stream at all, but either draining off the surface of the laud, or
oozing through the underground soil in varying quantities and
in uncertain directions, depending upon the variations of the
atmosphere, appears to be well settled by the cases cited in
argument. In Rawstron v, Taylor, 11 Ex. 369, 382, it was
held that, in the case of common surface water rising out of
springy or boggy ground, and flowing in no definite channel,
the land-owner was entitled to get rid of it in any way he pleased,
although it contributed to the supply of the plaintiff's mill.
And in Broadbent v. Ramsbotham, 11 Exch. 602, it was decided
that a land-owner has a right to appropriate surface water which
flows over his land in no definite channel, although the water is
thereby prevented from reaching a brook, the stream of which
had for more than fifty years worked the plaintiff's mill. Baron
Alderson, in delivering the judgment of the court in that case,
says (11 Exch. 615) : ' No doubt, all the water falling from
heaven, and shed upon the surface of a hill, at the foot of which
a brook runs, must, by the natural force of gravity, find its way
to the bottom, and so into the brook ; but this does not prevent
the owner of the land on which this water falls from dealing
with it as he may please, and appropriating it. He cannot, it
is true, do so if the water has arrived at and is flowing in some
natural channel already formed. But he has a perfect right to
appropriate it before it arrives at such channel.'
" These cases apply to the right to surface water not flowing
in any defined natural water-course. But, of course, the princi-
ples they establish are equally, if not more strongly, applicable
to subterranean water of the same casual, undefined^ and vary-
ing description. This appears clearly to have been the opinion
of Lord Chief Justice Tindal and the Court of Exchequer
Chamber, in the case of Acton v. Blundell, 12 Mees. & W. 324,
848 ; for, although the court abstained from intimating any
opinion as to what might have been the rule of law if there
§ 101 INJUfilES TO WATER BIGHTS. 171
had been an uninterrupted user for twenty years of the well of
the pliuntifi, which had been laid dry by the mining operations
of the defendant, yet the chief justice haying prefaced his judg-
ment by stating that *the question argued had been in sub-
stance this : whether the right to the enjoyment of an under-
ground spring, or of a well supplied by such underground
spring, is govemed by the same rule of law as that which
applies to and regulates a water -course flowing on the surface,'
he concludes with these words (12 Mees. & W. 868) : * We
think that the present case is not to be governed by the law
which applies to rivers and flowing streams, but that it rather
falls within that principle which gives to the owner of the soil
all that lies beneath his surface ; that the land immediately be-
low is his property, whether it is solid rock, or porous ground,
or venous ewrth, or part soil, part water ; that the person who
owns the surface may dig therein, and apply all that is there
found to his own purposes, at his free will and pleasure ; and
that if in the exercise of such right he intercepts or drains off
the water collected from underground springs in his neighbor's
well, this inconvenience to his neighbor falls within the descrip-
tion of damnuvn absque injuria^ which cannot become the ground
of an action.'
"The Court of Exchequer, in the present case, gave judg-
ment for the defendants without argument, on the authority of
the decision in Broadbent v. Ramsbotham. The Court of Ex-
chequer Chamber affirmed that judgment, there having been
only one dissentient opinion, which, however, pronounced, as it
was, by a most learned and able judge, [Mr. Justice Coleridge]
is certainly entitled to the highest respect. The judges, of whose
assistance your lordships have had the advantage, have been
unanimous in their agreement with the judgment of the Court
of Exchequer Chamber.
" Against this concurrence of authority, what is there to be
opposed in favor of the plaintiff but the Nisi Prius case of
Balston v. Bensted, (1 Camp. 463) and the case of Dickinson t^.
The Grand Junction Canal Company (7 Exch. 282) ? With
respect to Balston v. Bensted, it does not appear that the ques-
tion of the right to water percolating through the strata, as
contradistinguished from water flowing in a visible stream, was
172 INJURIES TO WATER RIGHTS. § 101
ever presented to Lord EUenborough's mind, as it is stated that
the defense was intended to be set up, but that he observed, early
in the trial, that there could be no doubt but that twenty years'
exclusive enjoyment of water in any particular manner affords
a conclusive presumption of right in the party so enjoying it.
Whether, by the words, *in any particular manner,' his lord-
ship meant to point to the right claimed in that case, or intended
to state a proposition applicable to all water of which there had
been a twenty years' enjoyment, from whatever source it might
be derived, it is impossible to gather from the report; but the
question was never argued, and as, upon proof that the decrease
of the water in the plaintiff 's bath had been occasioned by the
operations in the defendant's quarry, the case was at once re-
ferred, it can hardly be urged as any authority at all upon a
point of such importance, and which requires so much consider-
ation as that which it is supposed to have decided.
" With respect to the case of Dickinson v. The Grand Junction
Canal Company, upon which the plaintiff also relied, after the
observations made upon it by Mr. Justice Cresswell in the Ex-
chequer Chamber, and by Mr. Justice Wightman in delivering
the opinion of the judges to this house, it is unnecessary for me to
say more than that I entirely agree with them, and think that it
can hardly be regarded as a satisfactory decision upon the point
now under consideration. It appears to me that reason and
principle, as well as authority, are opposed to the claim of the
plaintiff to maintain an action for the interception of the under-
ground water which would otherwise have ultimately found its
way to the river Wandle, and that, therefore, the judgment of
the Court of Exchequer Chamber ought to be aflSrmed."
Lord Cran worth, concurring, discussed the matter as follows :
" The right to running water has always been properly described
as a natural right, just like the right to the air we breathe ;
they are the gifts of nature, and no one has a right to appro-
priate them. There is no difficulty in enforcing that right,
because running water is something visible, and no one can in-
terrupt it without knowing whether he does or does not do injury
to those who are above or below him. But if the doctrine could
be applied to water merely percolating, as it is said, through the
soil, and eventually reaching some stream, it would be always a
§ 101 INJURIES TO WATER RIGHTS. 173
matter that would require the evidence of scientific men, to state
whether or not there had been interruption, and whether or not
there had been injury. It is a process of nature not apparent,
and therefore such percolating water has not received the pro-
tection which water running in a natural channel on the surface
has always received. If the argument of the plaintifP were
adopted, the consequence would be that every well that ever
was sunk would have given rise or might give rise to an action.
^^ It is said that, in this case, this is not a well sunk by a par-
ticular individual for his own purposes, but a great well, which
has been sunk, and by which water is raised to a very enormous
extent, for supplying the whole town of Croydon. That argu-
ment does not affect my mind at all, because if it be conceded,
as I think it must be conceded, that each and every one of the
individuals residing upon this area might have sunk a well of
his own to supply himself, it seems to me to be exactly the same
thing whether the water is abstracted by one large well, which
supplies the whole community, or by a thousand small wells, by
which each individual of the community supplies himself. In
truth, I should think that, in all probability, the loss of water
would be much greater by each individual sinking a well than
by one great well being sunk for the supply of the whole com-
munity." ^
1 Lord Wensleydale concurred, but with some doubts, and remarked : ** Your
lordships have, for the first time, to decide the question as to the rights to un-
der^pround water. There are two conflicting authorities : the case under appeal,
and that of Dickinson vf The Grand Junction Canal Company, 7 Ex. 282, and
your lordships have to decide between them. It is supposed, in the judgment
in this case, delivered in the Exchequer Chamber by Mr. Justice Cresswell, that
the Court of Exchequer had, in two subsequent cases, (Rawstron v. Taylor, 11
Ex. 969, and Broadbent v. Ramsbotham, 11 Ex. 602; 25 Law J. K. 8. Ex. 115)
decided differently. Those cases are said to be inconsistent with the decision
in Dickinson v. The Grand Junction Canal Company, and virtually to overrule
it. This is certainly a mistake; for, having been a party to the judgments in
each of those cases, I am sure I, at least, had no notion of impugning the
doctrine which I had joined in laying down before, in the case of Dickinson v. The
Grand Junction Canal Company, which was not decided without great consid-
eration. In Broadbent v. Ramsbotham, it did not appear that any water which
percolated the strata would have reached the brook; and I well recollect that,
on the argument, I so considered, and therefore that the plaintiff could not re-
cover on the ground on which the case of Dickinson v. The Grand Junction
Canal Company was decided. The argument of Mr. Cowling, as reported in
the 25 Law Journal, 122 Exchequer, which is fuller than that in the 11 Exchequer,
was directed to this point. I may add, that the report is more correct than that
174 INJUBIES TO WATEB BIGHTS. § 102
§ 102. Injarias to wells, springs, etc., by minixig operft-
tions In adjacent lands. — ^Acton v. Blundell, 12 Mees. 824,
was one of the first of the series of leading cases, in which it has
in the 11 Exchequer, which attrihates to me too limited a view of the decision
in Dickinson v. The Grand Junction Canal Company.
** The subject of right to streams of water flowing on the surface has been of
late years fully discussed, and, by a series of carefully considered judgments,
placed upon a clear and satisfactory footing. It has been now settled that the
right to the enjoyment of a natural stream of water on the surface ex jure natura,
belongs to the proprietor of the adjoining lands, as a natural incident to the right
to the soil itself, and that he is entitled to the benefit of it, as he is to all the
other natural advantages belonging to the land of which he is the owner. He
has the right to have it come to him in its natural state, in flow, quantity, and
quality, and to go from him without obstruction; upon the same principle that
he is etititled to the support of his neighbor's soil for bis own in its natural state.
His right in no way depends upon prescription, or the presumed grant of his
neighbor. The elaborate judgment of Lord Denman, in the case of Mason 9.
Hill, Bam. & Adol. 1, in 1833, reviewed most prior judgments and authorities
of importance up to that date, and fully established that proposition. But
former authorities, and of a very early date, when carefully considered, really
left no room for doubt on this subject. In the case of Shury v. Pigott, 3 Bulst.
339; Poph. 166; Palmer, 444, decided in 1625, Whitlock, justice, laid it down that
* a water-course differs from a way or common; that it doth not begin by pre-
scription, nor yet by assent, but the same doth begin ex Jure natura^ having
taken this course naturally, and cannot be averted ' ; and he observed that the
course of a spring is a natural course and current, and to stop this may be a
nuisance to the commonwealth, and a private wrong. And in Brown v. Best, 1
Wils. 174, Lord Chief Justice Lee is reported to have said that a water-course
is jure naturcB, and therefore a declaration stating merely the possession of the
place through which the water used to run is good. And Denison, justice, said
that in natural water-courses that was the most proper mode of declaring. This
decision in the case of Mason v. Hill has been followed by many others laying
down the same proposition, of which Wood v. Waud, 3 Ex. 748, was one. Ma-
son V. Hill had been preceded by the case of Wright v, Howard, 1 Sim. & St. 190,
before Vice-Chancellor Sir John Leach. And it wa# followed by Embrey v.
Owen, 6 Ex. 353, and by Dickinson v. The Grand Junction Canal Company, 7
Ex.282.
"This position is also established in the American Courts, (Tyler v. Wilkinson, 4
Mason, 400) and sanctioned by the best writers of the highest authority (3 Kent
Com. 439-455) . And it is laid down as the first proposition in the very able treatise
on water-courses by Mr. Angell, an American authority (pp. 1, 21, 22). And It
has been held in America that the law implied damage from the violation of the
right— -tide Angell on Water-courses, p. 98; Pastorius v. Fisher, 1 Rawle, 27— a
matter which has been sometimes doubted, though probably without sufficient
reason. We may consider, therefore, that this proposition is indisputable: that
the right of a proprietor to the enjoyment of a water-course on the surface is a
natural right, and not acquired by occupation of the stream itself, or presumed
grant. And the expressions used by Mr. Justice Bayley in Williams v. Mor-
land, 2 Bam. & C. 910, and by Lord Chief Justice Tindal in Uggins v, Inge, 7
Bing. 682, that water flowing in a stream is puhli^ juris, and the property of
the first occupier, are founded on a mistake between the property in the water
itself and the right to have its continual flow. The observations, also, of Lord
§ 102 IKJUBIES TO WATER BIGHTS. 176
been held that one owner of land has no right or interest in it
which will enable him to maintain an action against a land-
Chief JuAtice Tindal, in the case of Acton i;. Blundell, 12 Mees. & W. 324, an4
of Mr. Justice Maule, in Smith v. Kenrick, 7 G. B. 510, as to the origin of the
right to the continual flow of a superficial stream, being the presumed acquies-
cence of the proprietors above and below, and which is the foundation of the
distinction made by the Lord Chief Justice between those streams and subter-
ranean water-courses, cannot be supported. Now, the right to a natural stream
flowing in a definite channel is not confined to streams on the surface, but the
right to an underground stream flowing in a known and definite channel is
equally a right ex naturuy and an incident to the land itself, as a beneficial ad-
junct to it, as was determined in the case of Wood v. Waud, 3 Exch. 748. If
the river Wandle in this case had been supplied by natural streams flowing into
the river above ground, or in known definite channels below ground, the cut-
ting off those streams to which the person entitled to the use of the river was
entitled ex natura as feeders of the river, would be an injury to him, and give
a right of action. And if this be true with regard to underground streams find-
ing their way into the river, then comes the difficulty how to distinguish the
smaller rivulets, and the drops of water which flow and percolate into and sup-
ply the river. They are all equally the gifts of nature for the benefit of the
proprietors of the soil through and into which they flow. They are all flow-
ing water, the property in which is not vested in the owner of the soil, any
more than the property in the water of a river which flows through it on the
surface. In Acton v. Blundell, it is said by Lord Chief Justice Tindal that the
case ' rather falls within that principle which gives to the owner of the soil all
that lies beneath his surface; that the land immediately below is his property,
whether it be solid rock, or porous ground, or venous earth, or part soil, part
water; that the person who owns the surface may dig therein, and apply all
that he finds to his own purposes, at his free will and pleasure.' If this
applies to water underground in a natural course of transit, (and it must do so
to be applicable at all) and not to mere stagnant water, I agree with Mr. Justice
Coleridge in his remark, that the reason why it is, as such, more the subject of
property than the water flowing above ground, is not explained. (2 Hurl. & N.
192.) Surely the use of the flowing water in each case, and not the property in
it, belongs to the propaetor of the surface. As to that part of Mr. Justice
Coleridge's opinion in which he relies on the possession of the mill for thirty
or sixty years, (2 Hurl. & N. 191, 193) I think he is wrong. I do not think that
the principle ui>on which prescription rests can be applied; it has not been with
the permission of the proprietor of the land that the streams have flowed into
the river for twenty years or upwards: * Qui non prohibit quod prohibere potestf
a»9entire videtur," But how here could he prevent it ? He could not bring
an action against the adjoining proprietor ; he could not be bound to dig
a deep trench in his own land to cut ofif the supplies of water, in order
to indicate his dissent. It is going very far to say that a man must be
at the expense of putting up a screen to window-lights to prevent a title
being gained by twenty years' enjoyment of light passing through a window.
But this case would go very far beyond that. I think that the enjoyment
of the right to these natural streams cannot be supported by any length of
user if it does not belong of natural right to the plaintiff. For the same reason
I dispute the correctness, of Lord EUenborough's opinion in the case of the
spring in Balston v, Benstead, 1 Camp. 463, where there had been twenty yetfrs'
enjoyment of it in a particular mode. The true foundation of the right is, that
176 INJURIES TO WATER BIGHTS. § 102
owner, who, in carrying on mining operations in his own adja-
cent land in the usual manner, drains away the water from the
land of the first-mentioned owner and lays his well dry.
it is incident to the land ex jure naturce. What, then, is the distinction between
snperficial streams and sabterranean water ? With respect to underground waters
percolating the strata, two considerations arise which make a material difference
between them and the right to superficial streams. In the first place, these sub-
terraneous waters cannot be actually enjoyed, (and all things are given to be en-
joyed) without artificial means. The water must be reduced into possession be-
fore it can be used, and some mode of reducing into possession must be permit-
ted by law. If there be no such right, underground water is comparatively use-
less. A man may therefore dig for his own supply, or make a well for his own
use an^ that of his family, and in so doing he may depriv.e his neighbor's land
of moisture, and even tap a copious spring, and prevent it from flowing to his
neighbor's close. It can rarely happen that in excavating, in order to obtain
the use of the water, some injury will not be caused to the subterraneous sup-
plies of a neighbor, especially as the precise course and direction of such water
can seldom be known accurately beforehand. In the second place, as the great
interests of society require that the cultivation of every man's land should be
encouraged, and its natural advantages made fully available, the owner must
be permitted to dig in his own soil, and in so doing he can very rarely avoid in-
terfering with the subterraneous waters flowing or percolating in his neighbor's
land. In the civil law are to be found many instances in which it is allowed to
cut oft subterraneous supplies, if it is done in the cultivation of the soil. In the
Digest (Dig. 39, 3, 1, sec. 12, Pothier's ed. 1782, vol. 3, p. 20) it is said: 'Denique
Marcellus scribit: Cum eo, qui in suo fodiens, vicini fontem avertit, nihil posse
agi: nee de dolo. Et sane actionem non debet habere; si non animo vicino no-
cendi, sed suum agrum meliorem faciendi id fecit.' And a very extensive sense
is given to these words, authorizing the improvement of the proprietor's own
land, in the civil law. In the same book of the Digest, ' De aqua et aquse plu-
visB arcendae,' (Dig. 39, 3, 1, sec. 9, Pothier's ed. 1782, vol. 3, p. 21) it is said that
the making a work ' agri colendi causa et frugum querendarum causa,' and
thereby altering the course of the aqiuB pluviGe^ is not actionable. The term
*frages ' is said to be the same as rent : ' Frugem pro reditu appellari, non solam
quod frumentis aut leguminibus; verum et quod ex vino, sylvis cseduis, creti-
fodinis, lapidicinis, capitur.' It would seem, therefore, that if the sources of
a fountain or spring in an adjoining piece of land were cut off by excavating,
in order to get the minerals in any place, it would be deemed by the Roman law
to fall within the principle of the improvement of the land, and not be action-
able. The case of Acton v, Blundell would be rightly decided upon this ground,
because the injury to the plaintiff's well was caused by the lawful exercise of
the defendant's right to get the minerals in his land; and unless he had that
right, the public would have lost the benefit of a valuable gift of Providence.
We come, then, to the conclusion that every man has the right to the natural
advantages of his soil— the plaintiff to the beneflt of the flow of water in the
river and its natural supplies, the defendant to the enjoyment of his land and
to the underground waters on it, and he may, in order to obtain that water, sink
a well. But according to the rule of reason and law, ' sic utere tuo ut cUienum
non Icedas,* it seems right to hold that he ought to exercise his right in a reason-
able manner, with as little injury to his neighbor's rights as may be. The civil
law deems an act, otherwise lawful in itself, illegal if done with a malicious in-
tent of injuring a neighbor, animo vicino nocendi. The same principle is adopted
§ 102 INJURIES TO WATER RIGHTS. 177
In Acton v. Blundell, the plaintiff below, who was also
the plaintiff in error, in his action on the case, declared in the
first count for the disturbance of his right to the water of
certain \indei*ground springs^ streams^ and water-courses^ which,
as he alleged, ought of right to run, flow, and percolate into the
closes of the plaintiff, for supplying certain mills with water;
and in" the second count for the draining off the water of a cer-
tain spring or well of water in a certain close of the plaintiff, by
reason of the possession of which close, as he alleged, he ought
of right to have the use, benefit, and enjoyment of the water of
the said spring or well for the convenient use of his close. The
defendants by their pleas traversed the rights in the manner
alleged in those counts respectively. At the trial the plaintiff
•
in tfae laws of Scotland, where an otherwise lawful act is forbidden * if done in
cemulationemvicini* (Bell's Principles, sec. 966); but this principle has not found
a place in our law. The question in this case, therefore, as it seems to me, re-
solves itself into an inquiry whether the defendant exercised his right of enjoy-
ing the subterraneous waters in a reasonable manner. Had he made the well
and used the steam-engines for the supply of water for the use of his own prop-
erty, and those living on it, there could have been no question. If the number
of houses upon it had increased to any extent, and the quantity of water for
the families dwelling on the property had been proportionately augmented,
there could have been no just grounds of complaint. But I doubt very greatly
the legality of the defendant's acts in abstracting water for the use of a large
district in' the neighborhood, unconnected with his own estate, for the use of
those who would have no right to take it directly themselves, and to the injury
of those neighboring proprietors who have an equal right with themselves. It
does not follow that each person who was supplied with water by the defendant
could have dug a well himself on his own land, and taken the like quantity of
water, so that the defendant may have taken much more than would have been
abstracted if each had exercised his own right.
"The same objection would not apply to the abstraction of water for the use
of the dwellers on the defendant's land, even though they carried on trades re-
quiring more water (breweries for example) than would be used for mere do-
mestic pui-poses; it would still be for their purposes only. But in this case
there has been an abstraction of water for purposes wholly unconnected with
the enjoyment of the defendant's land. On the whole, I should certainly have
wished to give this important case further consideration; but, as my noble and
learned friends have formed their opinions upon it, I acquiesce, and do not give
my advice to your lordships to reverse the judgment."
Lords Brougham and Kingsdown concurred with Lord Chelmsford, an4 did
not share in the doubts of Lord Wensleydale. (See, also, Wilson v. New Bed-
ford, 106 Mass. 261; Frazier v. Brown, 12 Ohio St. 294; Hanson v. McCue, 42 Cal.
303; Cole Silver M. Co. v. Virginia Water Co. 1 Sawy. 470; Smith v. Adams, 6
Paige, 43B; Waffle v. Porter, 61 Barb. 130 ; Ellis v, Duncan, 21 Barb. 230. But
see Bassett v. Salisbury Man'g Co. 43 K. H. 669; Swett v, Cutts, 50 N. H. 439;
Grand Junction Canal Co. v. Shrigar, L. B. 6 Ch. 483.) As to underground
ditchen, see Livingston v. McDonald, 21 Iowa, 160.
D. A. I.— 12.
178 INJURIES TO WATER RIGHTS. § 10^
proved that, within twenty jears before the commencement of
the suit, viz., in the latter end of 1821, a former owner and
occupier of certain land and a cotton-mill, now belonging to the
plaintiff, had sunk and made in such land a well for raising
water for the working of the mill ; and that the defendants, in
the year 1837, had sunk a coal-pit in the land of one of the de-
fendants, at about three-quarters of a mile from the plaintiff's
well, and about three years after sunk a second, at a somewhat
less distance ; the consequence of which sinking was, that by
the first the supply of water was considerably diminished, and
by the second was rendered altogether insufficient for the pur-
poses of the mill. The judge before whom the cause was tried
directed the jury that if the defendants had proceeded and
acted in the usual and proper manner on the land, for the pur-
pose of working and winning a coal-mine therein, they might
lawfully do so. Tindal, C. J., in deciding the case, said :
^The question argued before us has been in substance this:
whether the right to the enjoyment of an underground spring,
or of a well supplied by such underground spring, is governed
by the same rule of law as that which applies to and regulates
a water-course flowing on the surface. The rule of law which
governs the enjoyment of a stream flowing in its natural course
over the surface of land belonging to different proprietors is
well established : each proprietor of the land has a right to the
advantage of the stream flowing in its natural course over his
land, to use the same as he pleases, for any purposes of his own,
not inconsistent with a similar right in the proprietors of the
land above or below ; so that neither can any proprietor above
diminish the quantity or injure the quality of the water which
would otherwise naturally descend, nor can any proprietor be-
low throw back the water without the license or the grant of
the proprietor above. The law is laid down in those precise
terms by the Court of King's Bench in the case of Mason v. Hill,
6 Barn. & Adol. 1 ; 2 Nev. & M. 747, and substantially is de-
clared by the vice-chancellor in the case of Wright v. Howard,
1 Sim. & St. 190, and such we consider a correct exposition of
the law. And if the right to the enjoyment of underground
springs, or to a well supplied thereby, is to be governed by the
same law, then undoubtedly the defendants could not justify
§ 102 INJUBIES TO WATEB BIGHTS. 179
the sinking of the coal-pits, and the direction given bj the
learned judge would be wrong.
^^ But we think, on considering the grounds and origin of the
law which is held to govern running streams, the consequences
which would result if the same law is made applicable to springs
beneath the surface, and, lastly, the authorities to be found in
the books, so far as any inference can be drawn from them bear-
ing on the point now under discussion, that there is a marked
and substantial difference between the two cases, and that they
are not to be governed by the same rule of law.
" The ground and origin of the law which governs streams
running in their natural course would seem to be this : that the
right enjoyed by the several proprietors of the lands over which
they flow is, and always has been, public and notorious ; that
the enjoyment has been long continued — in ordinary cases, in-
deed, time out of mind — and uninterrupted ; each man know-
ing what he receives and what has always been received from
the higher lands, and what he transmits and what has always
been transmitted to the lower. The rule, therefore, either
assumes for its foundation the implied assent and agreement of
the proprietors of the different lands from all ages, or perhaps
it may be considered as a rule of positive law, (which would
seem to be the opinion of Fleta and of Blackstone) the origin
of which ia lost by the progress of time ; or it may not be un-
fitly treated, as laid down by Mr. Justice Story, in his judg-
ment in the case of Tyler v. Wilkinson,^ in the courts of the
United States, (4 Mason's Am. Rep. 401) as " an incident to
the land; and that whoever seeks to found an exclusive use
must establish a rightful appropriation in some manner known
and admitted by the law." But in the case of a well sunk by
a proprietor in his own land, the water which feeds it from a
neighboring soil does not flow openly in the sight of the neigh-
boring proprietor, but through the hidden veins of the earth
beneath its surface ; no man can tell what changes these under-
ground sources have undergone in the progress of time ; it may
well be that it is only yesterday's date that they first took the
course and direction which enabled them to supply the well.
Again, no' proprietor knows what portion of water is taken from
^ 4 Mason, 997.
180 INJURIES TO WATER RIGHTS. § 102
beneath his own soil ; how much he gives originally, or how
much he transmits only, or how much he receives ; on the con-
trary, until the well is sunk, and the water collected by drain-
ing into it, there cannot properly be said, with reference to the
well, to be any flow of water at all. In the case, therefore, of
the well, there can be no ground for implying any mutual con-
sent or agreement, for ages past, between the owners of the sev-
eral lands beneath which the underground springs may exist,
which is one of the foundations on which the law as to running:
streams is supposed to be built ; nor, for the same reason, can
any trace of a positive law be inferred from long-continued
acquiescence and submission, whilst the very existence of the
underground springs or of the well may be unknown to the pro-
prietors of the soil.
" But the difference between the two cases with respect to the
consequences, if the. same law is to be applied to both, is still
more apparent. In the case of the running stream, the owner
of the soil merely transmits the water over its surface ; he re-
ceives as much from his higher neighbor as he sends down to
his neighbor below ; he is neither better nor worse ; the level of
the water remains the same. But if the man who sinks the well
in his own land can acquire by that act an absolute and inde-
feasible right to the water that collects in it, he has the power
of preventing his neighbor from making any use of ^the spring
in his own soil which shall interfere with the enjoyment of the
well. He has the power, still further, of debarring the owner
of the land in which the spring is first found, or through which
it is transmitted, from draining his land for the proper cultiva-
tion of the soil ; and thus, by an act which is voluntary on his
part, and which may be entirely unsuspected by his neighbor,
he may impose on such neighbor the necessity of bearing a
heavy expense, if the latter has erected machinery for the pur-
poses of mining, and discovers, when too late, that the appro-
priation of the water has already been made. Further, the
advantage on one side, and the detriment to the other, may bear
no proportion. The wqII may be sunk to supply a cottage, or a
drinking-place for cattle ; whilst the owner of the adjoining land
may be prevented from winning metals and minerals of inestima-
ble value. And, lastly, there is no limit of space within which
§ 102 INJURIES TO WATER RIGHTS. 181
the claim of right to an underground spring can be confined : in
the present case, the nearest coal-pit is at the distance of half a
mile from the well : it is obvious the law must equally apply if
there is an interval of many miles.
^^ Considering, therefore, the state of circumstances upon
which the law is grounded in the one case to be entirely dis-
similar from those which exist in the other ; and that the applica-
tion of the same rule to both would lead, in many cases, to conse-
quences at once unreasonable and unjust; we feel ourselves
warranted in holding, upon principle, that the case now under
discussion does not fall within the rule which obtains as to sur-
face streams, nor is it to be governed by analogy therewith.
" No case has been cited on either side bearing directly on the
subject in dispute. The case of Cooper v. Barber, 5 Taunt. 99,
which approaches the nearest to it, seems to make against the
proposition contended for by the plaintiff. In that case, the de-
fendant had for many years penned back a stream for the pur-
pose of irrigation, in consequence of which the water had per-
colated through a porous and gravelly soil into the plaintiff's
land ; but as this percolation had been insensible, and unknown
by the plaintiff until the land was applied for building purposes,
the court held that the defendant had gained no right thereby,
so as to justify its continuance. The case of Partridge v. Scott,
S Mees. & W. 230, is an authority to show that a man, by
building a house on the extremity of his own land, does not
thereby acquire any right of easement, for support or otherwise,
over the adjoining land of his neighbor. It is said, in that case,
^^ he has no right to load his own soil, so as to make it require
the support of that of his neighbor, unless he has some grant
to that effect." It must follow, by parity of reason, that if he
digs a well in his own land so close to the soil of his neighbor
as to require the support of a rib of clay or of stone in his
neighbor's land to retain the water in the well, no action would
lie against the owner of the adjacent land for digging away
such clay or stone, which is his own property, and thereby let-
ting out the water ; and it would seem to make no difference as
to the legal rights of the parties, if the well stands some dis-
tance within the plaintiff's boundary, and the digging by the de-
fendant, which occasions the water to flow from the well, is some
182 INJURIES TO WATER RIGHTS. § 108
distance within the defendant's boundary; which is, in sub-
stance, the very case before us.
'* The Koman law forms no rule, binding in itself, upon the
subjects of these realms ; but, in deciding a case upon principle,
where no direct authority can be cited from our books, it affords
no small evidence of the soundness of tJie conclusion at which we
have arrived, if it proves to be supported by that law, the fruit
of the researches of the most learned men, the collective wisdom
of ages, and the groundwork of the municipal law of most of
the countries in Europe. The authority of one at least of the
learned Roman lawyers appears decisive upon the point in favor
of the defendants ; of some others the opinion is expressed with
more obscurity. * * * * «
" It is scarcely necessary to say that we intimate no opinion,
whatever as to what might be the rule of law if there had been
an uninterrupted user of the right for more than the last twenty
years ; but, confining ourselves strictly to the facts stated in the
bill of exceptions, we think the present case, for the reasons
above given, is not to be governed by the law which applies to
rivers and flowing streams, but that it rather falls within that
principle which gives to the owner of the soil all that lies be-
neath his surface ; that the land immediately below is his prop-
erty, whether it is solid rock, or porous ground, or venous earth,
or part soil, part water ; that the person who owns the surface
may dig therein, and apply all that is there found to his own
purposes at his free will and pleasure ; and that, if in the ex-
ercise of such right he intercepts or drains off the water col-
lected from underground springs in his neighbor's well, this in-
convenience to his neighbor falls within the description of dam-
num absque injuria^ which cannot become the ground of an
action. We think, therefore, the direction given by the learned
judge at the trial was correct, and that the judgment already
given for the defendants in the Court below must be affirmed."
§ 103. Rights of owners of land In subterranean
streams and percolations — ^Water belonging to the soiL
That the law as to subterranean waters differs from that affect-
ing the rights to surface streams, and that in the former case
the water belongs to the soil, is part of it, is owned and pos-
§ 108 INJURIES TO WATER RIGHTS. 188
sessed as the earth is, and may be used, removed, and controlled
by the owner to the same extent, was also held in a New York
case in 1867.^ It was an action to restrain the defendant from
digging on his own land and thereby diverting the water from
certain springs on one of the plaintiffs' lands, trom which the
plaintiffs and others were^in the habit of obtaining their neces-
sary supply of water. The lands were adjacent. There were
no springs or water-courses on defendant's lands ; the water
flowjgd to the springs by percolation through the defendant's
soil and beneath the surface, and had no distinct and definite
channel, or any known and defined course beneath the surface
of the defendant's land. Before the commencement of the ac-
tion the defendant sunk a ditch near the line between him and
one of the plaintiffs named England, until such ditch cut off
such percolation to some extent, and thereby interfered with and
diminished to some extent the flow of waters in the springs,
and laid a pipe in the ditch for the purpose of conducting such
waters to his premises, and did so conduct the waters to his
house, barn, and stables for ordinary domestic and farming use,
ani^such waters were essential and necessary for the defendant,
for the purposes aforesaid ; the plaintiffs had for many years
owned and enjoyed the right to use the surplus waters running
from the springs in the manner stated ; the defendant had no
right to enter upon England's land, or to take water from the
springs, or to divert the waters running therefrom into the reser-
voirs from such natural channel, nor had he done any of these
things unless by the digging of the ditch upon his own lands
near the line and near the springs, and carrying the water ob-
tained in such ditch in a pipe to his house, etc.
Boardman, J., said : " The following principles of law appear
to me, upon a careful examination, too well settled to admit of
controversy :
" 1. The law controlling the rights to subterranean waters is
very different from that affecting the rights to surface streams.
In the former case the water belongs to the soil, is part of it, is
owned and possessed as the earth is, and may be used, removed,
and controlled to the same extent by the owner. (Frasier v.
Brown, 12 Ohio, 304, 311, where the defendant dug a hole
1 Delhi V. YonmanSi 50 Barb. 316.
184 INJURIES TO WATEB BIGHTS. § 103
in his land, which cut off and stopped the sonrces and supply
of a spring which had previously risen in and supplied the
plaintiff's land with water. Haldeman v. Bruckhart, 45 Penn.
521, where the defendant, in opening a mine, cut off the sup-
ply of water j|pi a natural spring on the plaintiff's land. The
leading case of Acton v. Blundell, 12 Mees. & W. 336, ap-
proved in Chasemore v. Richards, 7 H. L. Cas. 349, where the
defendant in sinking a coal-mine cut off the supply of the plaint-
iff's well, from the water of which plaintiff's mill was operated.
Pixley V. Clark, 35 N. Y. 620, 526 ; Ellis v. Duncan, 21 fearb.
230, presumed to have been affirmed at the March Term, 1864,
of the Court of Appeals, from a reference thereto in Good-
ale V. Tuttle, 29 N. Y. 466 ; Roath v. Driscoll, 20 Conn. R. 533 ;
Chatfield v. Wilson, 28 Vt. 49 ; S. C. 31 Ibid. 358 ; Harwood
V. Bruter, 32 Ibid. 724 ; New River Co. v. Johnson, 2 Ad. & E.
435.)
"These and other cases establish the principle that no action
will lie for injuries caused by cutting off subterranean waters
percolating the soil, or running through unknown channels, and
without a distinct or defined course. The head-note of Smith
V. Adams, 6 Paige, 435, is adverse to this view, but the com-
plaint in that action, which was to restrain such a diversion of
waters, was dismissed for the want of jurisdiction, and the
remarks of the chancellor on this subject are mere dicta^ and
entitled to still less weight in view of the modification of the de-
cree in that case on appeal. (^24 Wend. 585.) Nor is the case
so fully reported as to show upon what precise facts it is based.
In Wheatley r. Baugh, 25 Penn. 531, it is cited as author-
ity, upon cutting off a subterranean stream^ and elsewhere it
is criticised and doubted as applied to percolations. (Wash, on
Easements, 2nd ed. 372, 385, 451, 463.) The cases of Balston
V, Bensted, 1 Camp. 463, and Dickinson v. Gr. June. Canal
Co. 7 Exch. 282, were dissented from and overruled in the
House of Lords in the case of Chasemore v. Richards, ante.
(See, also. Dexter v. Prov. Aqueduct Co. 1 Story, 387 ; Bassett
V. Salisbury Manuf. Co. 43 N. H. 579.)
^^ 2. An exception to this rule of law exists in the case of
subterranean streams that have a known and well-defined chan-
nel, constituting a regular and constant flow of water. Such
§ 108 INJURIES TO WATER BIGHTS. 185
Streams are subject to the same law with surface streams, and
subject only to the like interruptions and interference. (Wheat-
ley V. Baugh, supra ; Duddree v. Guardians, &c. 1 Hurl. & N.
627 ; Frazier v. Brown, 12 Ohio, 300 ; Dickinson v. Gr. June.
Canal Co. 7 Exch. 301 ; Whetstone v. Bowser, 2»4Price, 59 ; 45
Ibid. 518.)
^' 3. A further exception exists in case of an injury done by
cutting off such waters with malice. No person can wantonly
and maliciously cut off on his own land the underground supply
of a neighbor's spring or well, without any purpose of usefulness
to himself. (Greenleaf v. Francis, 18 Pick. 117 ; approved in
Wheatley v. Baugh, 25 Pa. 531, and Boath v, DriscoU, 20 Conn.
533 ; Parker v. Boston & Maine R. R. Co. 3 Cush. 107 ; Rad-
cliff's Executors v. Mayor of Brooklyn, 4 N. Y. 195.) Such
also is the rule of the civil law. There are many acts, lawful in
themselves, which become actionable if done with malice. (Pan-
ton V. Holland, 17 Johns. 92 ; Brown v. lUius, 25 Conn. 583.)
*'*' 4. The evidence tends to show that some of the plaintiffs
had used the water in question for a period of more than twenty
years, so that the plaintiffs, to that extent, claim a prescriptive
right to its continued use in the same manner they have hereto-
fore enjoyed such use. But reason and authority are alike
hostile to such a claim as applied to this case. There can be
no prescription where there is no adverse user, and there can
be no adverse user without creating a right of action. Now
the use of the plaintiffs in this case was in no sense adverse or
hostile to the defendant : it took nothing which he had any right
to use or enjoy; it gave him no right of- action ; he was in no
respect injured, nor was any right of his encroached upon.
The defendant could not prevent the plaintiffs from using the
waters that ran from the springs. Consequently, no grant could
be presumed from his silence or acquiescence. (Chasemore v*
Richards, 2 Hurl. & N. 183 ; Dexter v. Providence Aqu. Co.
1 Story, 393 ; Dickinson v. Grand Junction Canal Co. 7 Ex.
282 ; Roath r. DriscoU, 20 Conn. 533 ; Wheatley v. Baugh, 25
Pa. 528 ; Frasier v. Brown, 12 Ohio, 311 ; Haldeman v. Bruck-
hart, 45 Pa. 519.)
^^5. If the defendant's excavation or ditch drew the water
from the plaintiff's spring, instead of stopping the flow of water
186 INJURIES TO WATER RIGHTS. § 108
from the defendant's land to such spring, then the defendant
would be liable in this action. (Pixley v. Clark, 85 N. Y. 520 ;
Dickinson v. Grand Junction Canal Co. 7 Ex. 282 ; Cooper v.
Barb, 8 Taunt. 99.) But I do not understand from the evidence
or the findings of the judge, any indication that such is the fact.
It seems to .me plain that the defendant, in good faith and for
his own necessary, domestic, and agricultural use, has dug this
ditch upon his own lands to secure water. While he has in-
dulged in unkind expressions, I see no reason to differ from the
judge who tried the cause, in finding that his purpose was one
of usefulness to himself and not of malice to his neighbors.
The conclusions to which I have come are very ably presented
in Wash, on Easements, 2nd ed. 440-467. They accord with
the best interests of the general public. Proper cultivation
of lands, working of mines, and public improvements are al-
lowed. While injuries, as in this case, will be inflicted on
some, it is better than to suffer lands to lay waste, or mines to
be unworked, or public improvements to be stopped."
Balcom, J., concurred in these views, and said : " The ques-
tion in this case is, whether the defendant had the right to dig
in his land to obtain water for domestic and culinary purposes
at his house and to supply his horses and horned cattle at his
barn, when by so doing he materially injured two springs of
water that issued from adjoining land owned by the plaintiffs ;
which springs had issued out of the plaintiffs' land from time
immemorial ; but there was no surface flow of water above
either of the springs or to either of them from the defendant's
land, or from either of them to the defendant's land. This
court decided, at a General Term in the Second District, in
Ellis V. Duncan, 21 Barb. 230, that the owner of a farm may
dig a ditch to drain his land, or open and work a quarry upon
it, although by so doing he intercepts one of the underground
sources of a spring on his neighbor's land, which supplies a
small stream of water flowing through the land of each, and
thereby diminishes the natural supply of water, to the injury of
the adjoining* proprietor. And that the rule that a man has a
right to the free and absolute use of his property, so long as he
does not directly invade that of his neighbor, or consequentially
injure his perceptible and clearly defined rights, is applicable to
§ 103 INJURIES TO WATER RIGHTS. 187
the interruption of the sub-surface supplies of a stream by the
owner of the soil ; and the damage resulting from such an inter-
ruption is not the subject of legal redress.
" If the principle that the man who, by digging for a lawful
and proper purpose on his land, interrupts a sub-surface stream,
to the prejudice of his neighbor, commits a wrong for which the
law will give redress, is sound, (in the language of Justice
Strong) no one will be safe in purchasing land adjoining or
near a private stream of water, as he may be restrained forever
from making some valuable, and frequently, from the progres-
siveness of the age, necessary improvements.
" The decision in Ellis tj. Duncan, supra^ is sustained by the
very able opinion of Chief Justice Tindal, in Acton tj. Blundell,
12 Mees. & W. 324, in which the doctrine is laid down that a
man who owns land upon which there is no surface flow of water
may dig therein, and apply all that is there found to his own
purposes, at his free will and pleasure ; and that if, in the exer-
cise of such right, he intercepts or drains off the water collected
from underground springs in his neighbor's well, this inconven-
ience to his neighbor falls within the description of damnum
absque injuria^ which cannot become the ground of an action.
The chief justice, in that case, said : ' In the case of a well sunk
by a proprietor in his own land, the water which feeds it from a
neighboring soil does not flow openly in the sight of the neigh-
boring proprietor, but through the hidden veins of the earth
beneath the surface ; no man can tell what changes these under-
ground sources have undergone in the progress of time ; it may
well be that it is only yesterday's date that .they first took the
course and direction which enabled them to supply the well.'
" Every person buys land upon which there is no surface
water with the expectation that he can dig cellars and wells in
it for his own use and enjoyment, without interfering with the
rights of adjoining proprietors in respect to anything in the
lands of such proprietors. But when water runs across two
pieces of land upon the surface, the purchaser of either piece
sees, when he buys, that the proprietor of each piece has rights
to such water, with which neither can legally interfere to the
injury of the other.
^^ If I have a spring of water issuing out of my land, which is
188 INJUB1E8 TO WATEB BIGHTS. § lOS
injured or destroyed by my neighbor digging a well in his dry
land to obtain water for agricultural or household purposes^ it
is my misfortune. It is better that I be compelled to submit to
the injury without redress, and dig for water on my land,
than to deprive my neighbor of every use which he may prop-
erly desire to make of his land that will interfere with my
spring of water. This is a safer and less injurious rule than one
that would enable me to prevent every adjoining proprietor from
digging in or properly working his land for any purpose that
would materially interfere with the natural flow of water from
my spring. This doctrine is not only sustained by the decisions
already cited, but it is supported by other adjudications. Put-
nam, J., in delivering the opinion of the court in Greenleaf v.
Francis, 18 Pick. 117, says : ' The proprietor, in the absence of
any agreement subjecting his estate to another, may consult his
own convenience in his operations above or below the surface of
his ground. He may obstruct the light and air above, and cut
off the springs of water below the surface.' The Court of Ex-
chequer and House of Lords have decided that ' the owner of
a mill on the banks of a river cannot maintain an action against
a land-owner who sinks a deep well on his own land, and by
pumps and steam-engine diverts the underground water which
would otherwise have percolated the soil and flowed into the
river, by which, for more than sixty years, the mill was
worked.' (Chasemore v. Richards, 2 Hurl. & N. 168 ; 6
Ibid. 982.) The decision in Smith v. Kenrick, 7 Man. Gr. &
S. 514, also supports the doctrine I have enunciated. (Sjee
Phear on Rights of Water, Law Lib. vol. 75, pp. 32, 83, 4th
Series.)
"The Supreme Court of Vermont decided, in Chatfield v.
Wilson, 28 Vt. 49, that there are no correlative rights existing
between the proprietors of adjoining lands in reference to the
use of the water in the earth, or percolating under its surface ;
that such water is to be regarded as part of the land itself, to
be enjoyed absolutely by the proprietor within whose territory
it is ; and to it the law governing the use of running streams is
inapplicable. And that decision is supported by one of th«
ablest opinions on the subject in the books. The decision in
Roath V. DriscoU, 20 Conn. 532, ts like that in Chatfield v. Wil-
son, supra.
§ 103 INJUKIES TO WATER RIGHTS. 189
" In Goodale v. Tuttle, 29 N. Y. 459, Denio, C. J., said :
• We have lately decided that the principles which apply to the
obstruction of running streams do not govern in the case of wa-
ters running under the soil.' The decision here referred to was
made in Ellis v. Duncan, at the March' Term of the Court of
Appeals, in 1864. But the opinion of the Court of Appeals in
that case has not been reported. It probably is the same case
decided by this court, and reported in 21 Barb., sxtpra; Judge
Denio cited, approvingly, Acton v, Blundell, supra^ and Green-
leaf V. Francis, supra^ and remarked: 'In these cases it was
held that a liability did not attach to the act of one sinking a
shaft on his own soil, by which the subterranean waters, which
would otherwise have run under the plaintiff's soil, and hjive
J)een useful to him, were cut off.' (29 N. Y. 466.) This doc-
trine is approved in Pixley v. Clark, 36 Ibid. 620. In that case,
Peckham, J., says: 'The principle which exempts a party from
liability for digging upon and cultivating his own land as he
pleases, though he may interfere with subterranean water, is de-
signed for the benefit and protection of the land-owner.' He
cites, among other cases, in support of his views, Rawstron v.
Taylor, 33 Eng. L. & E. 428, and Broadbent v. Ramsbotham,
34 Ibid. 663. Washburn, in his work on Easements, 2nd ed.
411, says: 'If a person, without any intention to injure an ad-
jacent owner, and while making use of his own land to any
suitable and lawful purpose, cuts off, diverts, or destroys the use
of an underground spring or current of water which has no
known or defined course, but has been accustomed to penetrate
and flow into the land of his neighbor, he is not thereby liable
to any action for the diversion or stoppage of such water.' In
Frasier v. Brown, 12 Ohio, 294, it was decided, where a land-
owner digs a hole on his own land, for purposes connected with
the use of his own land, thereby cutting off or diverting under-
ground waters which have always been accustomed to percolate
and ooze through his land to the land of an adjoining proprietor,
and there to form the source of a spring and rivulet, any dam-
age thereby occasioned to such adjoining proprietor is damnum
absq^ie injuria.
" Brown v. Illius, 25 Conn. 683, was a case for corrupting the
plaintiff's well by means of noxious matter placed by the de-
190 INJUBIES TO WATBB BIOHT8. § 108
fendant on his adjoining land^ and in close proximity to the well,
which was in part washed by the rains along the surface of the
ground into the well, and in part soaked into the ground, and
found its way under the surface into the well. And it is not at
all in conflict with the previous decision of the same court in
Roath V. DriscoU, supra. The case of Dickinson v. Grand Junc-
tion Canal Company, 7 Exch. 282 ; S. C. 9 Eng. L. & E. 613,
does not overrule Acton v. Blundell, supra. The cases are dis-
tinguishable. (See Angell on Water-courses, sec. 114, p. 124.)
Parker v. Boston & Maine Railroad Co. 3 Cush. 107, presented
the question of the plaintiff's right to damages, under the stat-
utes of Massachusetts, by drying up his well in consequence of
the construction of a railroad near the well. It is not an au-
thority for maintaining this action. * * * *
" I am aware of the opinion (and it is supported by authority)
that a person is liable to an action for maliciously digging in his
own land for the sole purpose of destroying a spring of water
issuing out of the land of his neighbor. But that is not this
case ; for it is clear the defendant's object in digging in his land,
notwithstanding his random declarations, was to obtain a proper
supply of water at his house and barn on the same land.
" The ruling of Lord Ellenborough, in Balston v. Bensted, 1
Camp. 463, is against the right of the defendant in this case to
dig for water in his land to the injury of the springs of water
issuing from the plaintiff's land. But that ruling was made at
Nisi Prius, and it does not appear that any authority was cited
to the judge before it was made. That ruling was cited by
Chancellor Walworth in support of his dictum, in Smith v.
Adams, 6 Paige, 435, to the effect that the owner of land out of
which a spring of water issues may restrain the owner of adjoin-
ing land from digging in his own land so as to intercept the un-
derground stream that supplies the spring with water. But the
complaint in that case was dismissed with costs to the defend-
ants; and it was unnecessary for the chancellor to determine
whether the complaint could have been sustained, if the proofs
had been different and the statutes had not required him to dis-
miss the suit. His decision in that case, therefore, is not much
authority for the plaintiffs' position in this action. The case of
Dexter v. The Providence Aqueduct Company, 1 Story, 887,
§ 103 * INJUBUBS TO WATER BIGHTS. 191
differs somewhat from this ; and it seems to be founded upon
the ruling of Lord Ellenborough in 1 Campbell's Reports,
iwpra. The reasoning of Bartlett, J., in Basset v. Salisbury
Manufacturing Co. 43 N. H. 569, is in harmony with the
decisions in Campbell and Story's Reports, supra. But the
case is distinguishable from each of the cases in which those
decisions were pronounced. It was for setting the water of a
stream back, by means of a dam, so as to obstruct the natural
drainage from the plaintiff's land, above the dam, to his injury.
And I do not see how any one could doubt that such an action
would lie. It differs widely from this case. There was no cer-
tainty that the digging by the defendant in this case, in his land,
would interfere in the least with the natural flow of the springs
on the plaintiff's land, until such digging was nearly completed ;
and the defendant is not responsible for what was done without
his authority to the earth under the wall on the line between
lands of the parties. That earth was broken away in the night,
without the knowledge or consent of the defendant, by some of
the deluded persons who were digging in the plaintiff's springs
for gold they had heard had been secreted there. The question
is not in the case whether the plaintiffs could maintain an action
against the defendant for damages, for negligence or want of
due care in digging in his land, close to the line of the plaint-
iffs' land, to the injury of the plaintiffs' spring. For the action
is brought to restrain the defendant from digging in his land,
whatever his object or motives were, to the injury of the plaint-
iffs' springs. Hence, the question to be decided is, whether the
defendant had the right to dig in his land to obtain water for
proper and necessary uses at his house and barn, which were on
such land, when by so doing he materially interfered with the
natural flow of water from the springs issuing from the lands of
the plaintiffs adjoining the defendant's premises.
"If the defendant were liable for digging in his land for
water, for domestic or agricultural purposes, near the line of
the plaintiffs' lands out of which their springs issue, because
such digging materially lessened or prevented the flow of water
from such springs, then he and all others would be liable for
digging for a like proper purpose in their lands, though a half
mile from the plaintiffs' springs, provided such digging would
192 INJURIES TO WATER RIGHTS. § 103
prevent the water issuing from such springs. Such a rule
would create more vexation than it would do good, and it might
become intolerable. The weight of authority is opposed to such
a rule. The decisions in Campbell and Story's Reports, supray
and the dictum of Chancellor Walworth in Smith v. Adams,
8upra^ are overborne by the numerous opposing authorities I
have cited." ^ On appeal to the Court of Appeals, the latter
affirmed the judgment, and after stating that the action was for
a perpetual injunction, restraining the defendant from digging
upon his own land for a lawful purpose, the result of which was
the diversion of the water, and preventing its flowing or perco-
lating into two large and valuable springs on adjoining land,
which supplied the village of Delhi with water, reiterated the
doctrine that an action will not lie against an owner of land who,
in digging a well upon his own premises, intercepted the perco-
lation of underground currents of water, and thereby prevented
their reaching the springs or open running stream on the soil of
another. The rule is different when the water has actually
reached and become a part of the spring or stream, and is sub-
tracted from it.
The court, in deciding the case, said: " If the action of the
defendant took the water away from the springs after it had
reached there, after it had become part of an open running
stream, then this action would lie. (Rawstron v. Taylor, 38
Eng. L. & E. 428 ; Broadbent v. Ramsbotham, 34 Eng. L. & E.
553 ; Chasemore v. Richards, 7 House of Lords Cases, 349 ;
Pixley V. Clark, 35 N. Y. 520 ; Goodale v. Tuttle, 29 Ibid. 459 ;
Ellis V. Duncan, 21 Barb. 230, affirmed in this Court, but not
reported.) But if it merely prevented the water from reaching
the spring or open running stream, by intercepting its percola-
tion or underground currents, by digging a well upon the de-
fendant's own land for the use of his family and stock, this
action will not lie. The law is settled in that way, both here
and in England.* (See same cases.) The facts in this case, as
found by the justice who tried it, do not show that the water has
been taken away from the spring or running surface stream
after it had reached there. On the contrary, the inference from
his findings would rather seem the other way. Nor is there any
1 Delhi V. Youmans, 50 Barb. 316; S. C. on appeal, 45 N. Y. 362.
§ 104 INJURIES TO WATER RIGHTS. 193
request to find otherwise, nor any exception on that point.
Every inference and presumption that can be reasonably enter-
tained must be indulged in favor of affirming a judgment. It
is a well-settled rule that the party who alleges error must show
it. The doctrine of lateral support of adjoining land cannot aid
the plaintiff's case. I do not think it has any application to the
facts as found. It may well be that the plaintiffs have been in-
jured, legally injured, by the acts of the defendant ; but the facts
as found do not make it appear. In the absence of any request to
find, or exception to refusal to find, other facts, we cannot con-
sider the evidence with a view to decide whether other facts
may not be regarded as sufficiently proved." ^
It is almost impossible, were it desirable, to add anything to
the authority and the reasoning of the line of leading cases of
which I have made such free use upon the interesting subjects
concerning which they treat. The decisions are remarkable
alike for their learning, their cxhaustiveness, their logic, the
well-known ability of many of the judges participating in their
rendition, and for the unanimity with which the conclusions
have been reached — sometimes by different routes. As stated
at the outset, they constitute the best exposition of the law upon
the subject.
§ 104. Reasonable use of streams. — ^In the case of water
running in defined channels upon the surface of the earth, the
rule is that riparian proprietors have no absolute right to the
water of the streams flowing by them, but merely the usufruct
thereof. They may make a proper use of the water, and a
party iJ not liable to a lower proprietor for abstracting water
from the stream if no actual damas:e has been done.^ What is
a reasonable use is to be decided from the facts— considering
the size of the stream, and the amount abstracted. The de-
fendant, for instance, is the owner and occupant of a mill stand-
ing on his land above the land of plaintiffs, who are riparian
owners on the same stream, and has, in operating his mill and
1 Delhi V. Youmans, on appeal, 45 N. Y. 362.
2 Wood V. Waud, 3 Ex. 748; Embrey i;. Owen, 6 Ex. 353; Elliott v. Company, 30
Gush. 191; Seeley v. Brush, 36 Conn. 419; Chatfield v. Wilson, 31 Vt. 358; Gerrish
9. Company, 30 N. H. 478; Dilling v. Murray, 6 Ind. 324. But see Wheatley v,
Chrisman, 24 Pa. 298; Crooker v. Bragg, 10 Wend. 260.
D. A. I.— 13.
194 INJUBIE8 TO WATEE BIGHTS. § 104
the works contained in it, used the water of the stream by
means of a dam erected across it. The dam is of a magnitude
adapted to the size of the stream, and the mode of using it is
usual and reasonable according to the custom of the country.
The defendant is not liable, though the plaintiffs are prevented
from deriving benefits they might otherwise enjoy from the
stream.^
One riparian proprietor cannot maintain an action against an
upper proprietor for a diversion of part of the water of a natu-
ral water-course flowing through their lands, unless such diver-
sion causes the plaintiff actual perceptible damage. This is
undoubtedly on the ground that injuria sine damno will not
support an action. The right to flowing water is a right inci-
dent to the property in the land ; it is a right publici juris^ of
such character that whilst it is common and equal to all through
whose land it runs, and no one can obstruct or divert it, yet, as
one of the beneficial gifts of Providence, each proprietor has a
right to a just and reasonable use of it as it passes through his
land ; and so long as it is not wholly obstructed or diverted, or
no larger appropriation of the water running through it is made
th^n a just and reasonable use, it cannot be said to be wrongful
or injurious to a proprietor lower down. What is isuch a just
and reasonable use may often be a difficult question, depending
on various circumstances. To take a quantity of water from a
large running stream for agricultural or manufacturing pur-
poses would cause no sensible or practical diminution of the
benefit to the prejudice of a lower proprietor, whereas, taking
the same quantity from a small running brook, passing through
1 Keeny v. CompSny, 39 Conn. B76.
^ In ascertaininfi; what is a reasonable use, the general customs of the country
and the local customs along the stream may be taken into consideration, and
such rule should be laid down as is best calculated to secure the entire water of
the stream to useful purposes. Each case must stand upon its own facts.
(Keoney &c. v. Company, 39 Conn. 576; Hetrich v. Deachler, 6 Pa. 32; Du-
mont V. Kellogg, 29 Mich. 420; Davis v. Winslow, 51 Me. 264; Snow v. Parsons,
28 Vt. 469; Tyler i;. Wilkinson, 4 Mason, 397; Timm v. Bear, 29 Wis. 264; Davis
V. Getchell, 60 Me. 602; Hayes v. Waldron, 44 N. H. 580; Pool v. Lewis, 41 Ga.
162; S. C. 5 Am. R. 526; Holden t>. Company, 53 N. H. 552; Dilling v. Murray,
6 Ind. 324; Parker v. Hotchkiss, 25 Conn. 321; Gould v. Company, 13 Gray, 442.)
Whatever damage is incidental to a reasonable use of the water of a running
stream is damnum absque injuria. (Cases cited supra, and Chandler t7. Howland,
7 Gray, 348; Pitts v. Lancaster Mills, 13 Met. 166: Bliss v, Kennedy, 43 HL 68;
Hartzall v. Sm, 12 Pa. 248. )
§ 104 INJURIES TO WATEB RIGHTS. 195
many farms, would be of great and manifest injury to those be-
low, who need it for domestic supply or watering cattle ; and
therefore it would be an unreasonable use of the water, and an
action would lie in the latter case, and not in the former. It is
therefore to a considerable extent a question of degree ; still the
rule is the same, that each proprietor has a right to a reasonable
use of it for his benefit for domestic use, and for manufacturing
and agricultural purposes ; and each lower proprietor has not a
right to the full apd entire fiow of the natural stream without
diminution, acceleration, or retardation of the natural current;
because it would otherwise follow that each lower proprietor
would have a right of action against any upper proprietor for
taking any portion of the water of the stream for any purpose.
Such a taking would be a disturbance of his right ; and if taken
by means of a pump, a pipe, a drain, or otherwise, though
causing no substantial damage, it would be a nuisance, and war-
rant the lower proprietor in entering the close of the upper to
abate it. It would also follow that no proprietor could have
any beneficial use of the stream without an encroachment on
another's right.^ So that while the right to the use of flowing
water is publici juris^ and common to all riparian proprietors,
yet it is not an absolute and exclusive right to all the water
flowing past their land, so that any obstruction will give a cause
of action ; but it is a right to the flow and enjoyment of the
water subject to a similar right in all the proprietors to its rea-
sonable enjoyment.^ This is now what may be considered the
settled doctrine ; ^ though there are a few cases to the contrary,
and which hold that the right to the use of the water of a run-
ning stream is absolute, and that any diminution of the water
by an upper proprietor is actionable, just as an entry upon land
without license is actionable.^ It seems also to be established
lEUiott t7» Fitchburgh R. R. Co. 10 Cash. 191; Bealey v. Shaw, 6 East, 208;
Buncombe v. Randall, Het. 32; Williams v. Morland, 2 Bam. & G. 910; 4 Dowl.
& R. 583; Wright v. Howard, 1 Sim. & St. 190.
3 Cases last cited, and Blanchard v. Baker, 8 Greenl. 253; Webb v. Company,
3 Sum. 189; Tyler v. Wilkinson, 4 Mason, 397; Anthony v. Lapham, 5 Pick. 175;
Van Hoesen v. Coventry, 10 Barb. 518.
« Chatfield v. Wilson, 31 Vt. 368; Wadsworth v. Tillotson, 15 Conn. 366; Gmett
9. Johnson, 30 Conn. 180; Seeley v. Brash, 35 Conn. 419; Gerrish v. Company, 30
N. H. 478; Wood v. Waud, 3 Ex. 748; Embrey v, Owen, 6 Ex. 363; PolUtt v.
Long, 58 Barb. 20; Mason %j. Hill, 3 Bam. & Ad. 304.
4 Crocker o. Bragg, 10 Wend. 260; Wheatley t;. Chrisman, 24 Pa. 296.
196 • INJURIES TO WATEK RIGHTS. § 104
by the weight of authority that water may be diverted from
streams for the purposes of irrigation, if the use is reasonable ;
and if this is established, the effect which such use may have,
in case of deficiency, upon proprietors lower down the stream, is
not much regarded.^
In Massachusetts, it is held that an owner of land containing
a natural stream of water has a right to the reasonable use of
the water for mill privileges and purposes, and for other pur-
poses, whatever may be the effect upon lowef proprietors ; and
he is not liable to an action for obstructing and using the water
for his mill, if it appears that his dam is only of such magnitude
as is adapted to the capacity and size of the stream and to the
quantity of water usually flowing therein, and that his manner
of using the water is not unusual nor unreasonable, according
to the usual custom of the country in similar cases and as to
similar streams ; and this where even a city is the plaintiff, and
the use of the water for sewerage, for extinguishing fires, and
for other purposes essential to the health and safety of the city,
is to some extent impeded,^ As to natural running streams,
whether navigable or non-navigable, no superior rights can be
acquired at common law by one riparian proprietor over an-
other, by mere prior appropriation.^ Each is entitled to the
enjoyment and use of the stream substantially according to its
natural flow, subject only to such interruption as is necessary
and unavoidable in its reasonable and proper use by others.
Sometimes, however, by statute, an exclusive use has been al-
lowed, as for manufacturing purposes, and upon making com-
pensation.*
^ Nnttall V. Bracewell, Law R. 2 Ex. 1 ; Embrey v. Owen, 6 Ex. 353; Miner o.
Gilmour, 12 Moore P. C. C. 131; Chatlield v, Wilson, 31 Vt. 358; "Wadsworth v.
Tillotaon, 16 Conn. 366; Tolle v. Correth, 31 Tex. 362.
2 Springfield v, Harris, 4 Allen, 494; Thurber v. Martin, 2 Gray, 394; Gould i;.
Company, 13 Gray, 442; Tourtellot v. Phelps, 4 Gray, 376; Snow v. Parsons, 28
Vt. 459; Pool v. Lewis, 41 Ga. 162; Clinton v. Myers, 46 N. Y. 611; Davis t;.
GetcheU, 60 Me. 602; Pitts v. Mills, 13 Met. 166; Merrifield v. Worcester, 110
Mass. 216.
< Mason v. Hill, 3 Bam. & Adol. 304; Tyler v, Wilkinson, 4 Mason, 397; Bliss
V, Kennedy, 43 m. 67; Dumont v. KeUogg, 29 Mich. 420; Keeney &c. t;. Com-
pany, 39 Conn. 676.
4 Gould V. Company, 13 Gray, 442; Fuller v. Company, 16 Gray, 43; Lincoln v,
Chadboume, 66 Me. 197.
§ 105 INJXTRIES TO WATER RIGHTS. 197
§ 105. Pollution by sewage — City's liability. — ^If a stream
become fouled by the emptying into it of city sewers, to the
injury of a riparian proprietor, the latter cannot recover against
the city, so far as the pollution is owing to the plan of sewerage
adopted by the city under its charter, but he can recover for it
so far as it is attributable to the improper construction or un-
reasonable use of the sewers, or to the negligence or other fault
of the city in the care or management t)f them.^
In the case of Merrifield v. Worcester,^ the justice who de-
livered the opinion, in speaking of this right to have water
descend in its pure state, after citing some of the authorities,
says : " So the natural right of the plaintiff to have the water
descend to him in its pure state, fit to be used for the various
purposes to which he may have occasion to apply it, must yield
to the equal right of those who happen to be above him.
Their use of the stream for mill purposes, for irrigation, water-
1 Merrifield v. City of Worcester, 110 Mass. 216. See, also, Perry v. AVorcester,
6 Gray, ^44; Sprague v. Worcester, 13 Gray, 193; Flagg v. Worcester, 13 Gray,
601; Barry v. Allen, 8 Allen, 127; Turner v. Dartmouth, 13 Ibid. 291; Emery v.
Lowell, 104 Mass. 13; Child v. Boston, 4 Allen, 41. Some cases hold that when a
city, in grading its streets or constructing gutters, drains, or repairs upon or in
them, casts water or injurious drainage upon adjoining grounds, in an unusual
place, or in considerable quantities, it is liable for the damage done. (McCord
V. High, 24 Iowa, 336; Rowe v, Addison, 34 N. H. 306; Thurston v. St. Joseph,
61 Mo. 510; Aurora v. Reed, 57 111. 33; Nevins 7-. City of Peoria, 41 HI. 502.)
Other cases hold that a municipal corporation has the right to cause the water
collecting in the gutters of buildings and streets to flow upon land (its natural
outlet) in a single stream, when otherwise it would have flowed over the laud in
small currents. (Phinizy v. Augusta, 47 Ga. 260; Hough r. Doylestown, 4
Bi6W8t. 333. See Snow v. Parsons, 28 Vt. 459.)
3 110 Mass. 216 — Blanchard & Weeks' Leading Cases on Mines and Mining
Water Rights, p. 723.
Upon the exemption of municipal bodies from liability, and the correspond-
ing subordination of individual rights and interests to the safety, health, and
welfare of the general public, see: Baker v. Boston, 12 Pick. 184; Taylor v. Ply-
mouth, 8 Met. 462; Commonwealth t;. Tewksbury, 11 Met. 55: Commonwealth
V. Alger, 7 Cush. 53, 85; Belcher v. Farrar, 8 Allen, 325.
That no action will lie to interrupt mere surface-drainage, see : Parks r. New-
bu/yport, 10 Gray, 28; 9 Cush. 171; 11 Cush. 192; 13 Gray, 603; Angellou Waterc.
108r; Burr v. Mills, 21 Wend. 290; Colt v. Lewiston, 36 N. Y. 217; Waffle v. N. Y.
Gen. R. R. 58 Barb. 413; Livingston r. McDonald, 21 Iowa, 160; Thayer v. Brooks,
17 Ohio, 491: Miller v. Lauback, 47 Pa. St. 154; Lane v. Jasper, 39 111. 54; Adams
V. Walker, 34 Conn. 466.
That the public may improve grounds and streets, though water is cast on ad-
joining grounds, see: Parks v. Newburyport, 10 Gray, 28; Flagg v. Worcester, 13
Gray, 601; Dickinson v. City, 7 Allen, 19; Turner v. Dartmouth, 13 Allen, 291;
Emery v. City &c. 104 Mass. 13. See 55 Mo. 119.
198 INJURIES TO WATER RIGHTS. § 106
ing cattle, and the manifold purposes for which they may law-
fully use it, will tend to render the water more or less impure.
Cultivating and fertilizing the lands bordering on the stream,
and in which are its sources, their occupation by farm-houses,
and other erections, will unavoidably cause impurities to be car-
ried into the stream. As the lands are subdivided, and their
occupation and use becoq^e multifarious, these causes will be
rendered more operative, and their effects more perceptible.
The water may thus be rendered unfit for many uses for which it
had before been suitable ; but so far as that condition results only
from reasonable use of the stream in accordance with the com-
mon right, the lower riparian proprietor has no remedy. When
the population becomes dense, and towns or villages gather along
its banks, the stream naturally and necessarily suffers still
greater deterioration. Roads or streets crossing it, or running
by its side, with their gutters and sluices discharging into it
their surface-water collected from over large spaces, and carry-
ing with it in suspension the loose and light material that is thus
swept off, are abundant sources of impurity against which the
law affords no redress by action."
§ 106. Injuries to artificial water-courses. — In the case
of an artificial water-course, made for a particular and tempo-
rary purpose, its water having been originally taken with notice
that it might be discontinued, and the circumstances not being
such as to afford any presumption of a grant, the lessee of the
owner of the land through which the water-course was made
was held not to have acquired by user any perpetual right to
the uninterrupted continuance of the water-course. Its discon-
tinuance was damnum absque injuria. This doctrine was laid
down in the leading case of Arkwright v. Gell (5 Mees. & W.
226.) In that case the stream upon which certain mills were
constructed was not a natural water-course, to the advantage of
which, flowing in its natural course, the possessor of adjoining
land would be entitled, according to the doctrine laid down in
Mason v. Hill, 5 Barn. & Ad. 1, and in other cases. It was an
artificial water-course, and the sole object for which it was made
was to get rid of a nuisance to certain mines, and to enable their
proprietors to get the ores which lay within the mineral field
§ 106 INJURIES TO WATER RIGHTS. 199
drained by it ; and the flow of water through that channel was,
from the very nature of the case, of a temporary character, hav-
ing its continuance only whilst the convenience of the mine-own-
ers required it, and in ordinary course it would most probably
cease when the mineral ore above its level was exhausted.
Parke, B., in deciding the case, said : " What, then, is the spe-
cies of right or interest which the proprietor of the surface where
the stream issued forth, or his grantees, would have in such a
water-<;ourse, at common law, and independently of the effect of
user under the recent statute, 2 and 3 Will. IV, chap. 71 ? He
would only have a right to use it, for any purpose to which it
was applicable, so long as it continued there. An user for
twenty years, or a longer time, would afford no presumption of
a grant of the right to the water in perpetuity ; for such a
grant would, in truth, be neither more nor less than an obliga-
tion on the mine-owner not to work his mines by the ordinary
mode of getting minerals, below the level drained by that
sough, and to keep the mines flooded up to that level, in order
to make the flow of water constant, for the benefit of those who
had used it for some profitable purpose. How can it be sup-
posed that the mine-owners could have meant to burden them-
selves with such a servitude, so destructive to their interests ?
and what is there to raise an inference of such an intention ?
The mine-owner could not bring any action against the person
using the stream of water, so that the omission to bring an
action could afford no argument in favor of the presumption of
a grant ; nor could he prevent the enjoyment of that stream of
water by any act of his, except by at once making a sough at
a lower level, and' thus taking away the water entirely — a course
so expensive and inconvenient that it would be very unreason-
able, and a very improper extension of the principle applied to
the case of lights, to infer, from the abstinence from such an
act, an intention to grant the use of the water in perpetuity, as
a matter of right.
" Several instances were put, in the course of the argument, of
cases analogous to the present, in which it could not be con-
tended for a moment that any right was acquired. A steam-
engine is used by the owner of a mine to drain it, and the water
pumped up flows in a channel to the estate of the adjoining land-
200 INJURIES TO WATER RIGHTS. § 106
owner, and is there u^ed for agricultural purposes for twenty
years. Is it possible, from the fact of such an user, to presume
a grant by the owner of the steam-engine of the right to the
water in perpetuity, so as to burden himself and the assigns of
his mine with the obligation to keep a steam-engine forever,
for the benefit of the land-owner ? Or, if the water from the
spout of the eaves of a row of houses was to flow into an ad-
joining yard, and be there used for twenty years by its occu-
piers for domestic purposes, could it be successfully contended
that the owners of the houses had contracted an obligation not
to alter their construction so as to impair the flow of water ?
Clearly not. In all, the nature of the case distinctly shows that
no right is acquired as against the owner of the property from
which the course of water takes its origin ; though, as between
the first and any subsequent appropriator of the water-course
itself, such a right may be acquired. And so, in the present case,
Sir Richard Arkwright, by the grant from the owner of the sur-
face for eighty-four years, acquired a right to use the stream as
against him ; and if there had been no grant, he would, by
twenty years' user, have acquired the like right as against such
owner. But the user, even for a much longer period, whilst the
flow of water was going on for the convenience of the mines,
would afford no presumption of a grant at common law as
against the owners of the mines.
" It remains to be considered whether the statute 2 and 3 Will.
IV, chap. 71, gives to Mr. Arkwright, and those who claim
under him, any such right ; and we are clearly of opinion that
it does not. The whole purview of the act shows that it applies
only to such rights as would before the act have been acquired
by the presumption of a grant from long user. The act ex-
pressly requires enjoyment for different periods, " witlumt inter-
ruption^^^ and therefore necessarily imports such an user as could
be interrupted by some one " capable of resisting the claim " ;
and it also requires it to be " of right." But the use of the
water in this case could not be the subject of an action at the
suit of the proprietors of the mineral field lying below the kvel
of the Cromford Sough, and was incapab|p of interruption by
them at any time during the whole period, by any reasonable
mode ; and as against them it was not ^' of right " ; they had no
§ 106 INJURIES TO WATER RIGHTS. 201
interest to prevent it ; and until it becam6 necessary to drain the
lower part of the field, indeed at all times, it was wholly imma-
terial to them what became of the water, so long as their mines
were freed from it. We therefore think that the plaintiffs
never acquired any right to have the stream of water continued
in its former channel, either by the presumption of a grant, or by
the recent statute, as against the owners of the lower level of
the mineral field, or the defendants acting by their authority,
and therefore our judgment must be for the defendants."
We have already adverted to the conflict of authority exist-
ing upon the subject of surface drainage ; ^ a few more remarks
will illustrate the unsettled condition of the law. The passage
of water from rain and melting snow over the surface of land
for twenty years, has been held to give no right to its continu-
ance.^ And so with water raised by a steam-engine from a
mine, or flowing from the eaves of houses — the use by the owner
of adjoining land is held to give no claim to a continuance of the
flo^.^ On the other hand, it is said that an owner below can-
not recover damages from one above for increasing the volume
of water in the stream by draining into it, but an action will
lie for draining water standing upon the land of one upon that
of another.* In New York it is held that as to the running off
of surface water caused by rain or snow, an owner of land
cannot be prevented from filling up the wet and marshy places
upon his own soil for its amelioration and for his own benefit,
although the effect may be to incommode his neighbor.^ In a
case in England, a pit in plaintiff's land adjoining defendant's
land had been principally supplied with water coming from de-
fendant's land through an agricultural drain for the better culti-
vation of the ground, and which water flowed thence into a ditch,
and then into the pit. The drain came from a hillside through
the defendant's land, through a wet and boggy soil, and not from
any ascertained source, but it aided in effecting the general sur-
face drainage of defendant's land. The defendant, for the pur-
pose of more effectually draining and cultivating his ground,
1 Ante^ sec. 94.
2 Park V, Newburyport, 10 Gray, 28. See AHhley r. Wolcott, 11 Cush. 192.
» Arkwright v. Gell. Gale & W. 182; S. C. 5 Mees. & W. 226.
* Miner r. Laiibacli, 47 Pa. 154.
» Goodale v. Tuttle, 29 N. Y. 467.
202 INJUBIE8 TO WATEE RIGHTS. § 106
deepened the course of an old drain, and by making a communi-
cation between it and the drain which fed the plaintiff's pit, di-
verted the water from the pit. The immediate object was to
get a better fall of water from defendant's land, which previ-
ously had been too wet and boggy to be productive. The court
held that no grant of the flow of the water was to be presumed
in the case in favor of the plaintiff, and that the plaintiff had
no right of action against the defendant for the diversion of the
water.^ In cases where the facts warranted the courts in finding
that there was a regular defined channel, so as to amount practi-
cally to a natural water-course, parties have been held liable both
for obstructing and diverting the flow of the water.^ In Iowa,
it was held that if a ditch made by the defendant for the purpose
of drainage, and which terminated within sixty feet of the line
of the plaintiff's land, had the effect to increase the quantity of
water on the plaintiff's land to his injury, or threw it upon the
land in an unusual manner to his injury, the defendant would
be liable even though the ditch was constructed by the defend-
ant in the course of the ordinary use and improvement of his
farm.* In Wisconsin, it is held that the owner of land on which
there is a pond or reservoir of surface water, cannot lawfully
discharge it through an artificial channel upon the land of
another, or so near it as to cause damage.^ The rule often ap-
plied to municipal corporations is that while they are not bound
to construct sewers or drains to protect adjoining owners against
the flow of surface waters from the public ways, yet if they
actually construct such as must carry water upon the adjacent
lands, they are as liable as if they had invaded such lands by
sending in their agents or servants.^
1 Greatrex v. Hay ward, 20 Eng. L. & E. 377. To same effect— Rawstron o.
Taylor, 23 Eng. L. & E. 428; S. C. 11 Exch. 3(39.
2 Earl V. De Hart, 1 Beasl. 280; Gillet v. Johnson, 30 Conn. 180; Phoenix &c.
V. Fletcher, 23 Cal. 281 ; Pillsbury v. Moore, 4A Me. 154; Natoma &c. v. McCoy, 23
Cal. 490; Duke v. Elgin, 7 Eng. L. & E. 39.
s Livingston v. McDonald, 21 Iowa, 160. See Reynolds v. Clark, Ld. Raym.
1399; Laney v. Jasper, 39 111. 46; Adams v. Walker, 34 Conn. 466.
4 Pettigrew v. Evansville, 25 Wis. 223. See, also, Proctor v. Jennings, 6 Nev.
83; Butler v. Peck, 16 Ohio N. S. 334.
« Nevins v. Peoria. 41 111. 502; Alton v. Hope, 68 111. 167; Aurora v. GiUett, 56
ni. 132; Gould r. Booth, 66 N. Y. 62; Ashley v. Port Huron, 35 Mich. 296; Petti-
grew V. Evansville, 25 Wis. 223.
§ 107 INJURIES TO WATER RIGHTS. 208
§ 107. Artificial watar-conrseB — Two classes — ^Distinc-
tions. — ^These may be divided into two classes : 1. Where the
supply of the water-course is itself created by art; and 2.
Where new and artificial channels are made to serve, in whole
or in part, the purposes of natural conduits of water flowing
upon or issuing from the earth.
" The first great distinction," says Washburn, " between nat-
ural and artificial water-courses is, that while the use of the one
is incident to the ownership of the land itself in which it exists,
that of the other may exist merely as an easement in such land,
belonging to another than the owner of the land. And the dis-
tinction between the two classes of artificial water-courses may
be generally stated to be, that if the supply of water be artifi-
cially created, as well as the course in which it is made to flow,
no property like that of a perpetual easement can be acquired
in the water by the use thereof, especially if the original pur-
poses of its creation were temporary in their nature ; while if
the artificial course be a substitute for a natural one in conduct-
ing the flow of a permanent stream of water, an easement, in the
case of such water, may be acquired, by the owner of the land
through which it passes, by an enjoyment thereof for a requisite
period of time." ^ While in such cases as Arkwright v. Gell,
the land-owner over which the water flows would have no right
to divert the water — since to him it is, as to the riparian propri-
etors below, as a natural stream — it would not be competent for
the mine-owner, though he might stop it, to foul or corrupt the
same, to the injury of the proprietors upon the stream. To that
extent, if suffered to flow, it had the incidents of a natural stream,
even as against the one who had created it.*''
In Wood V. Waud, 3 Exch. W. H. & G. 748, the parties had
mills upon a small natural stream. A portion of their supply
of water came from two different mines, from one of which a
stream had flowed for sixty years, by means of an artificial out-
let, dug by the owner of the mine for the purpose of draining
his mine. From the other mine a stream of water flowed, which
was caused by pumping. These streams flowed through sepa-
1 Washburn on Easements and Servitudes, 294 ; Arkwright v. Gell, 5 Mees. &
W. 203.
^ Washburn on Easements and Servitudes, 296.
204 INJUKIES TO WATER RIGHTS. § 107
rate soughs into the natural stream. One of these passed under-
ground, through the defendant's land, before reaching the plaint-
iff 's land, and then through that into the stream. The other did
not pass through plaintiff 's land before reaching and discharging
itself into the stream. The action was for diverting or interfer-
ing with the enjoyment of the water flowing from these soughs.
Whatever the defendant did in this respect was done by him
upon his own land before they had entered and united with the
waters of the natural stream, and before the water of the sough
that run through plaintiff's land had reached the latter.
The exposition of the principles regulating the law of natural
streams, as laid down in Mason v. Hill, 3 Barn. & Adol. 306 ;
6 Ibid. 1 ; and in 8 Kent's Commentaries, 439 ; and Tyler «.
Wilkinson, 4 Mason, U. S. R. 397, per Story, J., was approved.*
Ark Wright v. Gell, supra^ was also approved. Pollock, C. B.,
remarked that the question arose with respect to an artificial
stream not yet united to a natural one, and he then continued :
" The proprietor of the land through which the Bowling Sough
flows has no right to insist on the colliery owners causing all
the waters from their works to flow through their land. These
owners merely get rid of a nuisance to their works by discharg-
ing the water into the sough, and cannot be considered as giving
it to one more than another of the proprietors of the land
through which that sough is constructed. Each may take and
use what passes through his land, and the proprietor of land
below has no right to any part of that water until it has reached
his own land. He has no right to compel the owners above to
permit the water to flow through their land for his benefit; and
consequently he has no right of action if they refuse to do so.
If they pollute the water, so as to be injurious to the tenant
below, the case would be different. The plaintiffs were held to
have no right of action for the diversion of that water. The
question as to the other sough was considered still less favorable
to the plaintiffs, for this sough did not pass through their land at
all." No action, therefore, will lie for an injury by the diver»ion
of an artificial water-course, where from the nature of the case
it is obvious that the enjoyment of it depends upon temporary
iSee, also, Acton v. Blundell, 12 Mees. & W. 324; Sury r. Pigott, Poph. 169; 3
Bulst. 339; Brown v. Best, 1 Wila. 174.
§ 107 INJURIES TO WATER RIGHTS. 205
circumstances and is not of a permanent character, and where
the interruption is by a person who stands in the nature of a
grantor.^ This, if sanctioned, would present a case of the servient
owner being allowed to compel the dominant one to continue a
discharge of water and to prevent him from altering its course,
and thus to invert their relative positions. No such right exists
in the servient proprietor .^
The distinction is to be observed between the right of a lower
riparian proprietor to water flowing in a natural stream, and to
that created and flowing in an artificial one, for a temporary
purpose : that in the former case an action will lie for its diver-
sion 'by an upper proprietor, although done in his own land ; in
the latter case it will not, unless the same shall have reached
and become a part of a natural stream. Such diversion, how-
ever, should be made not wantonly or maliciously, but* in the
prosecution of some legitimate business.^
The doctrine of the case of Magor v. Chadwick, 11 Ad. & E.
571, was correct as applied to the facts of the case in hand.
Doubt has, however, been cast upon some of the broad principles
enunciated in that case. It may be inferred, from Magor v. Chad-
wick, that the law of water-courses, whether natural or artificial,
is much the same. But Cresswell, J., in Sampson v. Hodnott, 1
Com. B. N. S. 590, referring to the distinction between an arti-
ficial drain and a natural stream, says that ^' all authorities, from
the Digest downward, show that there is a distinction." *
It is a well settled principle that a servient proprietor of land
cannot complain of any use which the dominant proprietor may
make of the water in a stream, so long as he is not sensibly
affected by that use. The dominant proprietor may divert the
water from its usual channel, but if it is returned to the same
1 Wood V. Waud, 3 Exch. W. H. & G. 747.
> Gale on Easements, 181 ; Arkwright v. QelU supra ; Duncan v. Bancroft, 110
Mass. 267; Waffle v. N. Y. Central R. R. Co. 53 N. Y. 11; 58 Barb. 413; 2 Washb.
R. Pr. •72.
s Wasbbnrn on Easements, 298.
The right of a party to an artiticial water-course, as against the party creating
it, must depend iipou the character of the water-course, and the circumstances
under which it was created. (Greatrex v. Hay ward, 8 Ex. W. H. & G. 290;
Wood V. Waud, tupra. See, also, Magor v. Chadwick, 11 Ad. & E. 671.)
* See American Co. v. Bradford, 27 Cal. 360; Union Water Co. v, Crary, 25 Cal.
804; Yale's Mining Claims, 203, 204, 306; Wood v. Waud, 3 Ex. W. H. & G. 747.
206 INJUBIEB TO WATER BIGHTS. § 108
channel before it reaches the land of the next proprietor below,
no one can complain.^
§ lOB. Increasing the flow. — Almost the whole law of
water -courses is founded on the maxim of the common law,
aqua currit et debe currere^ etc. Because water is descendible by
nature, the owner of a dominant or superior heritage has an
easement in the servient or inferior tenement, for the discharge
of all waters which by nature rise in, or flow or fall upon, the
superior. Hence, the owner of a mill has an easement in the
land below, for the free passage of the water from the mill in
the natural channel of the stream, accompanied with a right to
enter upon the land for the purpose of clearing t>ut the stream
and removing obstructions to the free flow of the water. The
superior proprietor may improve his lands by throwing increased
waters upon his inferior through the natural and customary
channels, and this is the principle as to both agricultural and
mining operations. It is to be maintained, but prudently ap-
plied.2
1 Norton v. Valentine, 14 Vt. 239.
Doctrine of artificial water-courses as applied to canals, ditches, and flumes
in the mining regions of California: See American Co. v. Bradford, 27 Cal. 360;
Union Water Co. v. Crary, 25 Cal. 504; Gregory v. Harris, 43 Cal. 38; McDonald
t;. Bear R. W. Co. 13 Cal. 220; Ortman v. Dixon, 13 Cal. 33; Surge v. Undeif-
wood, 6 Cal. 45; Weimer v. Lowry, 11 Cal. 104; Courtwright v. Bear River Co. 30
Cal. 573; Conger v. Wearer, 6 Cal. 548; Kelly v. Natoma Water Co. 6 Cal. 105;
Kimball v. Gearhart, 12 Cal. 27;, Weaver v. Eureka Lake Co. 15 Cal. 272; James
t;. Williams, 31 Cal. 211; Richardson v. Kier, 37 Cal. 263; McGregor r. Newton.
23 Cal. 340; Broder t;. Natoma W. & M. Co. 50 Cal. 621; Ramsey v. Chandler, 3
Cal. 93; Stone v. Bumpus, 46 Cal. 218; McDonald v. Askew, 29 Cal. 200; Reed v.
Spicer, 27 Cal. 57. Condemnation of water for mining purposes: Merced Water
Co. V. Cowles, 31 Cal. 215; Bliss v. Kingdom, 46 Cal. 651.
^Kauffman v. Griesemer, 26 Pa. 407; Martin v. Riddle, 26 Pa. 415; Presoott v.
Williams, 5 Met. (Mass.) 429; Williams v. Gale, 3 Har. & J. (Md.) 231. But see
Merritt v. Parker, 1 Coxe, (N. J.) 460; Bentz v. Armstrong, 8 W. & S. 401.
§ 109 INJURIES FROM ACTS OP PUBLIC OFFICERS. 207
CHAPTER XI.
INJURIES FROM ACTS OF PUBLIC OFFICERS.
§ 109. Judicial officers, liability of.
§ 110. Responsibility of judicial officers for striking attorney's name from the
rolls.
§ 111. Ministerial officers.
§ 112. Acts of sheriffs.
§ 113. Public officers.
§ 114. Naval and military officers.
§ 109. Judicial officers, liability of.— No judicial officer
is responsible in damages for his errors and mistakes if he has
jurisdiction to act, and acts honestly and in good faith. No
misapprehension or mere errors of judgment will render him
responsible in a civil action if there is jurisdiction of the subject-
matter. Chitty has declared that " an action cannot be main-
tained against a civil or ecclesiastical judge or justice of the
peace acting judicially in a matter within the scope of his juris-
diction, although he may decide erroneously in the particular
case. Nor can an action be'maintained against a juryman, or the
Attorney-General, or a superior military or naval officer for acts
done in the execution of his office, and within the purview of
his general authority." ^ Chief Justice Kent said that a judicial
offiger is not bound to decide correctly either in matter of law
or of fact, but only according to his convictions ; and this prin-
ciple, he says, has a deep* root in the common law.^ It has been
held that this rule does not apply where he has no jurisdiction
of the subject-matter.^ And if the officer assumes to act in such
a case he may be liable in damages.^ But it is also held that a
judicial officer who merely misjudges of his jurisdiction, where
3 1 Ch. on PI. 78.
> Lansing v. Yates, 5 Johns. 367; 9 Johns. 396: Bamardiston v. Soame, 6 State
Trials, 1063-1099; Kandall v. Brigham, 7 Wall. 523.
* Pratt V. Gardner, 2 Cush. 68.
* Blood V. Sayer, 17 Vt. 609; Cable v. Cooper, 15 Johns. 157; Houlten v. Smith,
U Ad. & B. N. S. 841; Pease t;. Clayton, 1 Best. & S. 658.
208 INJURIES FROM ACTS OF PUBLIC OFFICERS. § 109
*
at least it depends upon matters of fact, should be exempt from
liability, and that the protection afforded extends to all cases
except where he acts fraudulently, corruptly, and maliciously.^
The author believes, however, that in a clear case of want of
jurisdiction, as if a court having purely probate jurisdiction
should undertake to exercise jurisdiction over a case of felony,
the judge would be liable in damages.^ But with these provisos
it is a rule of great antiquity that no action will lie against a judge
of record for any act done by him in the exercise of his judicial
functions, provided, though it be done through mistake, yet it
is within his jurisdiction. The rule that a judicial officer can-
not be sued for an adjudication according to the best of his
judgment upon a matter within his jurisdiction, and also the
rule that a matter of fact so adjudicated by him cannot be put
in issue in an action ao^ainst him, have been uniformlv main-
tained.^ This is for the public welfare, to secure the independ-
ence of the judges, and in order that the course of justice
should not be impeded by constant restraints and apprehensions
on the part of those called upon to administer it.* And the
rule has been extended to persons acting to some extent ju-
dicially, but with a more limited authority.^ If a charge be
of an offense over which a magistrate has jurisdiction, if it be
true in fact, the jurisdiction cannot be made to depend upon the
truth or falsehood of the facts, or upon the evidence being suf-
ficient or insufficient to establish the corpus delicti under inves-
1 Bevard v. Hoffman, 18 Md. 479; BuUett v. Clemant, 16 B. Mon. 193; Gregory
V. Brown, 4 Bibb, 28; Morgan v. Dudley, 18 B. Mon. 693; Morgan v. Haghes, 2
T. R. 225.
2 Ackerly v. Paikinson, 3 Maule & S. 411; Calder v. Halkett, 3 Moore, P. C. C.
28.
8 Smith V. Boucher, Cas. Temp. Hardw. 69; Calder v, Halkett, 3 Moore P. C.
C. 28; Scott V. Stansfield, Law R. 3 Com. P. 220; Taafe v. Downes, Law R. 3 Com.
P. 36; Kemp v. Neville, 10 Com. B. N. S. 549; Wildes t;. Russell, Law R. 1 Com.
P. 730; Yates v. Lansing, 5 Johns. 291; 9 Ibid. 396; Broom's Leg. Max. *86; Oar-
nett V. Ferrand, 6 Barn. & C. 626.
♦ Dicas i;. Lord Brougham, 6 Car. & P. 249; Kemp v. Neville, 10 Com. B. N. 8.
523; Tinsley v. Nassau, Moody & M. 52; Johnstone v. Sutton, 1 T. R. 513; 1
Ld. Raym. 468; Ackerley v. Parkinson, 3 Moore & S. 411; Beaurain r. Scott, 3
Camp. 388; Wingate v. Waite, 6 Mees. & W. 739; Hamilton v. Anderson, 3 Macq.
App. Cas. 363.
« Holroyd v. Breare, 2 Barn. & Aid. 473; Bradley v. Carr, 3 Scott N. R. 521;
Pitcher v. King, 9 Ad. & E. 288: Carratt v. Morley, 1 Q. B. 18; Morris v. Park-
inson, 1 Cromp. M. &' R. 163; Pike r. Carter, 3 Bing. 78; Brown v. Copley, 8
Scott N. R. 630: Lowther v. Radnor, 8 East, 113.
§ 109 INJURIES FROM ACTS OF PUBLIC OFFICERS. 209
tigation.^ When authority is given by statute to justices or
magistrates, and they appear to have acted within the jurisdic-
tion so given, and complied with all the provisions of the statute,
their conviction drawn up in due form, and remaining in force,
is conclusive evidence in their favor in any action which may be
brought against them founded on their official proceedings.^
Where, however, the law imposes an absolute duty upon an in-
dividual, injuries arising from his neglect or refusal to perform
it have been the subjects of actions, and have been held to fall
within different principles.^
As neither judges nor judicial officers are, as a rule, liable to
answer personally for their judicial acts, an action will not lie,
therefore, against a judicial officer for an erroneous judgment
or wrongful commitment ; nor usually for any act done in a ju-
dicial capacity.^ An action will not lie against a grand juror
for wrongfully presenting and finding an indictment; nor against
a petty juror for a wrong verdict ; nor a coroner, who is a judi-
cial officer, for any matter done by him in the exercise of his
judicial functions. If, therefore, he desires to hold a private in-
quest, he may conduct it with closed doors ; and a person may
be even turned out if he refuses to go, and the coroner cannot
be held liable as for an assault.^ The rule holds good, gener-
ally, as to arbitrators.^ They are not responsible in damages
for their mistakes or omissions, or for negligence or carelessness
in the discharge of their duties ; but if they abuse the office of
1 Cave V. Mountain, 1 Man. & G. 257; Ayrton v. Abbott, U Q. B. 1. See Fer-
giiAon t;. Klnnoul, 9 Clark & F. 261; Reg. v. Bolton, 1 Q. B. 66.
s Basten v. Carew, 5 Barn. & C. 652; 5 Dowl. & R. 558; Baylis v. Strickland, 1
Scott N. R. 540; Stamp v. Sweatland, 8 Q. B. 13; Painter v. Company, 3 Ad. & E.
433; Femley v. Worthlngton, 1 Scott K. R. 432; Webb v. Bachelour, Vent. 273;
Tarry v. Newman, 15 Mees. & W. 645.
> Ferguson v. Kinnoul, 9 Clark & F. 251; Barry v. Amaud, 10 Ad. & £. 646;
McKenna v. Pape, 1 H. L. Cas. 7.
« Bradley v. Fisher, 13 Wall. 335; Jordan v. Hanson, 49 N. H. 199; Hammond
r. Howell, 1 Mod. 184; 2 Mod. 219; Yates v. Lansing, 5 Johns. 282; 9 Johns. 395;
Londegan v. Hammer, 30 Iowa, 608; Bailey v, Wiggins, 5 Harris, 462; Pratt v.
Gardner, 2 Cush. 68; Hetfield v. Towsley, 3 Iowa, 584; Downing v. Herrick, 47
Me. 462; Deal v. Harris, 8 Md. 40; Brodie v. Rutledge, 2 Bay, 69; Tyler v. Alford,
38 Me. 530; Ambler v. Church, 1 Root, 211; Hamilton v. Williams, 26 Ala. 527;
Adkins v. Brewer, 3 Cowen, 206; Yanderheyden v. Young, 11 Johns. 160; Ely t;.
Thompson, 3 Marsh. 76; Little v. Moore, 1 South. 74.
SGarnett v. Ferrand, 6 Bam. & C. 611; State v. Copp, 15 N. H. 212; Kemp v,
Neville, 10 Com. B. N.* S. 623; Hunter v. Mathis, 40Ind. 366.
•Morris v. Reynolds, 2 Ld.Raym. 867; Anon. 3 Atk. 644.
D. A. I.— 14.
210 INJURIES FROM ACTS OP PUBLIC OFFICERS. § 109
judge, and act fraudulently and corruptly, they may be held an-
swerable.^ The general rule as to the exemption of judicial
officers from liability in civil suits applies to inferior as well as
the higher officers as long as thoy act in a judicial capacity.^ It
extends to members of municipal boards in passing upon
claims ; ^ to assessors while fixing the valuation of property ; ^
to commissioners of highways in passing upon exemptions from
road taxes,'^ and in laying out, altering, or discontinuing high-
ways, when vested with authority to so act ; ® and to appraisers
of damages when property is taken in pursuance of the right of
eminent domainJ As to officers exercising what are called
quasi judicial functions, there are many cases which hold that
they are liable if they act maliciously to the prejudice of others.^
Members of boards of education have been held liable for the
dismissal of teachers when there was malice and no justifiable
reason for their conduct.^ But a school committee has been
held not liable for expelling children from school if the expul-
sion was done in good faith. *^ With regard to election ofiicers
the authorities are not agreed. Some cases place these function-
aries upon the footing of qitasi judicial officers, and protect
them when acting in good faith, but not when acting maliciously
in denying a person's right to vote. If the citizen has had a
fair and honest exercise of judgment by the officer, it is said
1 Wills V. Maocarmick, 2 Wils. 148; Tozer v. Child, 7 £1. & B. 383; Pappa v.
Ros6, L. R. 7 Com. P. 32, 625; Hopper, In re, L. R. 2 Q. B. 367.
* A large number of authorities might be cited to sustain this principle. The
following, however, are deemed sufficient: Raymond t;. BoUes, 11 Cush. 310;
Floyd V. Barker, 12 Co. 20; Downing t;. Herriok, 47 Me. 462; liondegan v. Ham-
mer, 30 Iowa, 606; Bumham v, Stevens, 33 K. H. 247; Jordan r. Hanson, 49 N.
H. 199; Walker v, Hallack, 32 Ind. 239; Scheettgen v. Wilson, 48 Miss. 253.
« Wall V. Trumbull, 16 Mich. 228.
* Auditor v. Atchison &c. 6 Kansas, 600; Steele v, Dunham, 26 Wis. 393;
Weaver v. Derendorf , 3 Denio, 117.
'Harrington v. Commissioners, 2 McCord, 400; Freeman v, Cornwall, 10
Johns. 470.
Sage V. Laurain, 19 Mich. 137. But see Turnpike Road v. Champney, 2 K. H.
199; Stone v. Augusta, 48 Me. 127.
7 Van Steenbeigh v. Bigelow, 3 Wend. 42.
^ Gregory v. Brooks, 37 Conn. 365; Baker v. State, 27 Ind. 485; BUlings v. Laf-
^erty, 81 111. 318; lilienthal t;. Campbell, 22 La. An. 600; HoggaU v. Bigley, 6
Humph. 236; Reed v. Conway, 20 Mo. 22; Tompkins v. Sands, 8 Wend. 462.
ft Bennett v. Fuhner, 48 Fa. 157.
10 Donahoe v. Richards, 38 Me. 379; Stephenson v. Hall, 14 Barb. 222; BUfWiM
V. Southard, 17 Ohio 402; Feiti«er v. Tyler^ 48 Vt. 444; 21 Am. R. 13B.
§ 110 INJURIES FROM ACTS OF PUBLIC OFFICERS. 211
that this is all the law gives him ; and although the judgment
may be erroneous, and the party injured, it is damnum absqtie
injuria^ and no action lies.^ The rule, however, that the oflScer
is liable in any event in case of error, is supported by plentiful
authority and cogent reasoning.^ This rule is based upon
grounds of public policy, and the necessity of preserving the
freedom and the rights of the ballot. If judicial officers act
clearly outside of their authority, and a party is injured, they
may be liable.^ In many cases, judges have been held liable if
their acts were done willfully, fraudulently, corruptly, or mali-
ciously.* But in others, impeachment is considered the only
remedy.* A judge is not answerable for slander spoken by him
in the exercise of his judicial functions in reference to a matter
before him, even if the words be spoken maliciously, and with-
out probable cause, and be irrelevant and not bona fide in the
discharge of his duty as a judge ; but if he makes slanderous
attacks upon private character in respect of matters not before
him, and into which he has no right to inquire, he may be respon-
sible like a private individual.^ This immunity from pecuniary
responsibility is given to judges not so much for their own sake,
but, as Lord Tenterden has expressed it, for the sake of the
public, and the advancement of justice, " that, being free ffom
actions, they may be free in thought and independent in judg-
ment, as all who are to administer justice ought to be."
§ 110. Responsibility of tho judiciary in civil actions
for acts dono judicially, as striking from the rolls. — In
Bradley v. Fisher, in the Supreme Court of the United States,^
1 Bevard v. Hoffman, 18 Md. 479; Friend v. Hamill, 34 Md. 298; Goetchens v.
Mattliewson, 61 N. Y. 420; Pike v. Magoun, 44 Mo. 492, and numerous cases cited.
> Lincoln v. Hapgood, 11 Mass. 350; Jeifries v, Aukeny, 11 Ohio, 372; Monroe
V. CoUins, 17 Ohio K. S. 665; Keith v. Howard, 24 Pick. 292, and cases cited;
Ashby V. White, Ld. Raym. 938; 1 Salk. 19; 8 State Trials. 89.
< Craig V. Burnett, 32 Ala. 728; Bumham v. Stevans, 33 N. H. 247; Doswell v.
Impey, 1 Bam. & C. 109; Gahan r. Lafltte, 5 Moore P. P. C. 382; Blood v. Sayre,
17 Vt. 609; Adkins v. Brewer, 3 Cow. 206; Clarke v. Spicer, 6 Kan. 440.
^Bevard r. Hoffman, 18 Md. 479; State v. Campbell, 2 Tyler, 177; Morgan v.
Dudley, 18 B. Mon. 693; Gregory v. Brown, 4 Bibb, 28; Bullitt v. Clement, 16
B. Mon. 193.
& Rochester White Lead Co. v. Rochester, 3 N. T. 463. See § 110.
•Scott V. Stansiield, Law R. 3 £z. 220; Lewis v. Lery, 27 Law. J. Q. B. 289;
McGregor v, Thwaites, 3 Barn. & C. 24.
•Bradley v. Fisher, 13 WaU. 335; Ex parte Bradley, 7 Wall. 364.
212 INJUBIES FROM ACTS OF PUBLIC OFFICERS. § 110
it appeared that the plaintiff was a member of the bar of the su-
preme court of the District of Columbia, and the defendant was
one of the justices of that court. The plaintiff had been one of
the counsel for t)\e defense in a criminal cause pending before the
defendant as judge, and immediately upon the discharge of the
jury in the cause, the court, held by defendant, directed an order
to be entered on its records striking the name of the plaintiff from
the roll of attorneys practicing in that court. The order was
accompanied by a recital, that during the progress of the trial,
immediately after the court had taken a recess for the day, as
the presiding judge was descending from the bench, he had
been accosted in a rude and insulting manner by the plaintiff,
charging him with having offered the plaintiff a series of insults
from the bench from the commencement of the trial ; that the
judge had then disclaimed any intention of passing any insult
whatever, and had assured the plaintiff that he entertained for
him no other feelings than those of respect ; but that the plaint-
iff, so far from accepting this explanation or disclaimer, had
threatened the judge with personal chastisement. The action
Was for damages for the conduct of the defendant, whereby the
plaintiff was deprived of his right to practice as an attorney in
that court.
Several points were raised and discussed, based upon the con-
stitution of the court, and of a technical character ; but it was
also distinctly set up, by special plea, that the order was made
in the lawful exercise and performance of defendant's authority
and duty as presiding justice, for the official misconduct of the
plaintiff as one of its attorneys, and in the' presence of the court.
In other words, it set up that the order was a judicial act ; and it
was held that, if such were the character of the act and the juris-
diction of the court, the defendant could not be subjected to
responsibility for it in a civil action, however erroneous the act
might have been, or however injurious in its consequences it
proved to the plaintiff. " For," said the court,^ " it is a general
principle of the highest importance to the proper administration
of justice, that a judicial officer, in exercising the authority vested
in him, shall be free to act upon his own convictions, without
apprehension of personal consequences to himself. Liability to
1 Per Field, J.
« .
§ 110 INJURIES FROM ACTS OF PUBLIC OFFICERS. 213
answer to every one who might feel himself aggrieved by the
action of the judge, would be inconsistent with the possession of
this freedom, and would destroy that independence without which
no judiciary can be either respectable or useful. As observed by
a distinguished English judge, it would establish the weakness of
judicial authority in a degrading responsibility.^
"The principle, therefore, which exempts judges of courts of
superior or general authority from liability in a civil action for
acts done by them in the exercise of their judicial functions,
obtains in all countries where there is any well-ordered system
of jurisprudence. It has been the settled doctrine of the Eng-
lish courts for many centuries, and has never been denied, that
we are aware of, in the courts of this country. It has, as
Chancellor Kent observes, * a deep root in the common law.'^
" Nor can this exemption of the judges from civil liability be
affected by the motives with which their judicial acts are per-
formed. The purity of their motives cannot in this way be the
subject of judicial inquiry. This was adjudged in the case of
Floyd V. Barker,^ reported by Coke in 1608, where it was laid
down that the judges of the realm could not be drawn in ques-
tion for any supposed corruption, impeaching the verity of their
records, except before the king himself ; and it was observed
that if they were required to answer otherwise it would tend to
the scandal and subversion of all justice, and those who are the
most sincere would not be free from continual calumniations.
" The truth of this latter observation is manifest to all per-
sons having much experience with judicial proceedings in the
superior courts. Controversies, involving not merely great pe-
cuniary interests, but the liberty and character of the parties,
and consequently exciting the deepest feelings, are being con-
stantly determined in those courts, in v/hich there is great con-
flict in the evidence, and great doubt as to the law which should
govern their decision. It is this class of cases which imposes
upon the judge the severest labor, and often creates in his mind
a painful sense of responsibility. Yet it is precisely in this
class of cases that the losing party feels most keenly the decis-
•
1 Justice Mayne in Taafe v. Downes, 3 Moore P. C. C. 41n.
3 Yates V. Lansing, 5 Johns. 291.
s 12 Coke, 25.
214 INJURIES FROM ACTS OF PUBLIC OFFICERS, § 110
ion against him, and most readily accepts anything but the
soundness of the decision in* explanation of the action of the
judge. * * J£ eivil actions could be maintained in such cases
against the judge because the losing party should see fit to al-
lege in his complaint that the acts of the judge were done with
partiality, or maliciously, or corruptly, the protection essential
to judicial independence would be entirely swept away. Few
persons sufficiently irritated to institute an action against. a judge
for his judicial acts would hesitate to ascribe any character to
the acts which would be essential to the maintenance of the
action."
" If, upon such allegations, a judge could be compelled to an-
swer in a civil action for his judicial acts, not only would his
office be degraded and his usefulness destroyed, but he would be
subjected for his protection to the necessity of preserving a
complete record of all the evidence produced before him in
every litigated case, and of the authorities cited and arguments
presented, in order that he might be able to show to the judge
before whom he might be summoned by the losing party — ^and
that judge perhaps one of an inferior jurisdiction — that he had
decided as he did with judicial integrity ; and the second judge
would be subjected to a similar burden, as he in his turn might
also be held answerable by the losing party." ^
Nor, according to come cases, will it avail that the act be
alleged to bq done maliciously and corruptly.^ The judges of
the superior courts in America are said to be only responsible to
the people, or the authorities constituted by the pSople, from
whom they receive their commissions, for the manner in which
they discharge th^ trusts of their office. If, in the exercise of
the powers with which they are clothed as ministers of justice,
they act with partiality, or maliciously, or corruptly, or arbitra-
rily, or oppressively, they may be called to an account by im-
peachment, and suspended or removed from office.
1 Bradley v. Fisher, 13 Wall. 335, per Field, J. ; Pratt t;. Gardner, 2 Cush. 6S,
per Shaw, C. J.; Fray v. Blackburn, 3 Bedt & Smith, 576; Scott v. Stansfleld, 3
Law R. Ex. 220; Bandall v. Brigham, 7 Wall. 523; Rochester &c. v. Rochester, 3
N. Y. 463.
^IbitL See cases contra, cited in preceding section.
§ 111 IXJUBIES FBOM ACTS OF PUBLIC OFFICERS, 216
§ HI. Ministorial ofELcers. — ^Where the court has juris-
diction of the subject-matter, the officer is not generally bound
to look into the proceedings under which it was issued. If the
process is issued by a court having jurisdiction, and is regular
on its face, the officer is usually protected in following ks
requirements.^ If the subject-matter is within the jurisdiction
of the court or officer issuing the process, and the want of juris-
diction concerns only the person or place, the executive officer
cannot be required to determine t*he question of jurisdiction, and
will be protected in the execution of the process if it be regular
on its face, and no want of jurisdiction appears.^ In such cases
the damage resulting to the injured party is damnum absque
injuria as against the officer. But want of jurisdiction of the
subject-matter is held to deprive the officer of protection from
the process.^ In cases of liability on civil process the presump-
tion is in favor of the officer that he has done his duty.^ Where
there is a discretionary authority vested in a public officer, if he
acts within its scope he is not answerable for damages at all un-
less he acts maliciously and with intent to injure.^ ^^ Where
process is served by mistake on a wrong person, and all the pro-
ceedings in the action are taken against him, the defendant so
wrongfully sued will undoubtedly have a good defense to the
action, and will consequently recover his costs ; but if it be asked
what further remedy he has for the inconvenience and trouble
he has been put to, the answer is that in point of law, if the
proceedings have been adopted purely through mistake, though
injury may have resulted to him, it is damnum absque injuria^
and no action will lie. Indeed, every defendant against whom
an action is unnecessarily brought, experiences some injury or
inconvenience beyond what the costs will compensate him for." ^
1 Gray v. Kimbal, 42 Me. 299; Woods v. Davis, 34 N. H. 328; Ortman v. Green-
man, 4 Mich. 291; Warner v. Shed, 10 Johns. 138; Dynes v. Hoover, 20 How. 65.
3 Smith V. Shaw, 12 Johns. 267; Barker v. Green, 2 Biofif. 317; Champaign Bank
V. Smith, 7 Ohio St. 42; Squibb v. Hole, 2 Mod. 29; Higglnson v. Martin, 2 Mod.
196; Camp v. Mosely, 2 Fla. 171.
* Stephens v. Wilkins, 6 Barr. 260; Pierce v. Atwood, 13 Mass. 324; Hull v.
BlaisdeU, 1 Scam. 332.
4 State V. Freemi^, 8 Iowa, 428.
* Burton v. Fulton, 49 Pa. 161.
Broom's Leg. Max. *198, citing Da vies v. Jenkins, 11 Mees. & W. 766; Cot-
terell v. Jones, 11 Com. B. 713; Hob. 266; Ewart v. Jones, 14 Mees. & W. 774;
Yearsley v, Heane, 14 Mees. & W. 322 ; Daniels v. Fielding, 16 Mees. & W. 200; De
Medina v. Grove, 10 Q. B. 162 ; Churchhill v. Siggers, 3 £1 . & B. 929, and other cases.
216 INJURIES FROM ACTS OF PUBLIC OFFICERS. § 111
In the following cases the officer serving process has been held
justified in his acts under it. Where the subject-matter was
within the jurisdiction of the court, and the want of jurisdic-
tion was as to person or place, the officer was held excused un-
less the want of jurisdiction appeared on the process.^ Where
the warrant was in legal form, by a court having jurisdiction,
and directed him to arrest a party, yet the proceedings of the
court in issuing the warrant were erroneous.^ Where a sherifE
made a levy upon property to which a claim was interposed, and
upon the trial the plaintiff in execution was nonsuited, and the
property directed to be restored to the claimant, which judgment
was afterward reversed by the supreme court, and the sheriff
was afterward proceeded against by motion for failing to make
the money, he was held protected by the erroneous judgment in
delivering up the property.* When a precept is lawful on its
face and in form, though voidable for irregularity or mistake,
the officer has been held to be protected by it until reversed or
set aside.* Where process was issued out of one court, with the
seal of another attached to it, and Was therefore erroneous, and
as if it had no seal, but the defect could be remedied, the process
not being absolutely void, but only voidable, the officer was pro-
tected.^ So, a writ which was once legally served, and then
altered by inserting a different date and return-day without de-
fendant's consent, justified the officer in again making service of
it when delivered to him for that purpose subsequently to the
alteration.^ An execution in the name of .'^ A B, use of officers
of court," gave protection to the officer levying when issued by
a court of competent jurisdiction, the words '^ use of officers of
court " being treated as surplusage.^ A constable justified
under a 'writ of attachment, notwithstanding the direction of the
writ did not conform to an existing statute, but was according
to a previous one.^ An officer executing the process of a court of
1 Champaign &c. v. Smith, 7 Ohio N. S. 42; Smith v. 8haw, 12 Johns. 257.
< Donahue v. Shed, 8 Met. 326.
* Smith V. LeaTitto, 10 Ala. 92. i
« State V. McNally, 34 Me. 210; Parker v. Smith, 1 Gilm. 411; Wilton v. Butler, i
34 Me. 431; Kenniston v. Little, 10 Fost. 318.
B Dominick v. Backer, 3 Barb. 17.
• Stoddard v. Tarbell, 20 Vt. 321.
1 McElhany v. Flynn, 23 Ala. 819. ,
8 Stewart v. Martin, 16 Yt. 397.
§ 111 INJURIES FROM ACTS OF PUBLIC OFFICERS. 217
competent jurisdiction was held not liable though the judgment
was paid,^ and this although he may be shown a receipt in set-
tlement of the judgment. He is not bound to investigate its
sufficiency, validity, or genuineness.* So, if the consideration
of the judgment had totally failed.^ Where the first name is
erroneous in the writ, it does not make the officer liable if the
right defendant be served ; so with mistakes in the writ as to
places of residence.* Except in cases of willful neglect, when
the plaintiff has himself been in fault, it frequently destroys the
liability of the officer ; especially where the plaintiff has by in-
terference prevented the officer from discharging his duty.^ So,
where the plaintiff or his agent instructs the sheriff to make a
return which proves insufficient;® or where the plaintiff is
present, and acquiesces in stated terms of sale ; ^ or where the
plaintiff makes mistakes in amounts.^ An officer may also
justify his neglect to serve an execution by showing title in a
third person, or that the judgment is fraudulent, and that he
holds another process in favor of the true judgment-creditor.*
He may show that goods to be attached did not belong to the
judgment;debtor,^^ or that prior attachments were on which cov-
ered the whole possible value of the goods.^^ As to returning an
execution, a sheriff who had lost or mislaid it, or mailed it to
the office from which it came, and after diligent search could
not find it, was held not liable.^ And where a sheriff misplaced
an execution, and failed to return it in the proper time, but it
was replevied by good parties, this was considered a defense.^'
1 Wilmarth v. Burt, 7 Met. 257; Mason v. Vance, 1 Sneed, 178.
2 Twitchell v. Shaw, 10 Cush. 46.
' Arnold v. Commonwealth, 8 B. Mon. 109.
** Trail V. Howland, 10 Cush. 109; Smith v. Bowker, 1 Mass. 76. But see old
cases, contrcL, Bex v. Sheriff, 1 Marsh. 75; Shadgett v. Glipson, 8 East, 328; Price
V. Harwood, 3 Gamp. 108; Scandover v. Warne, 2 Camp. 270; Cole v. Hindson, 6
Term Rep. 234.
* Stryker v. Merseles, 4 Zab. 542.
< Billingsby v. Rankin, 2 Swan, 82; Robinson v. Harrison, 7 Humph. 189.
' Bottoms V. Mlthyin, 26 Ga. 481.
8 Pftge V. Belt, 17 Miss. 263.
^ Pierce v. Jackson, 6 Mass. 242; Dobbs v. Justices, 17 6a. 624; Clark v. Fox-
croft, 6 Greenl. 296.
1^ Canada v. South wick, 16 Pick. 556.
11 Commercial Bank v. Wilkius, 9 Greenl. 28; Jordan v. Gallup, 16 Conn. 536.
^ Mitcheson v. Foster, 3 Met. (Ky.) 324.
w Shippen r. Curry, 3 Met. (Ky.) 184.
218 INJURIES FROM ACTS OF PUBLIC OFFICERS. § 111
Where a deputy who had returned a writ was asked by the
plaintiff some time afterwards whether the return was in due
form of law, and with intent to deceive replied that it was, and
the plaintiff was thereby damnified, it was held there was no
remedy against him, as the question called for his opinion as to
a matter of law, and besides, the plaintiff had himself the means
of acquiring correct information.^ If the levy and judgment is
fraudulent and void, this is a defense to an action for neglect to
return the execution, provided the oflScer holds the true process.*
A sheriff is not liable for an insufficient return if his making It
was caused by statements of plaintiff or his agent,^ and it is a
good defense to an action for a false return that the plaintiff
assented to it with full notice of the f acts.^
The usual requisite, as laid down in the books, is that process
must be " fair upon its face," in order to protect an officer in
serving it — ^that is to say, it should be apparently lawful. If
the tribunal issuing it has authority of law to issue process of
that nature, and it is legal in form, and there is nothing to notify
the officer that it is issued without authority, it may be said to
be ^' fair upon its face." It is not necessary that it should be
absolutely according to the best practice, nor according to the
best models.** Since the case of Savacool v. Boughton,® it would
appear that the distinction between process issuing from courts
of general jurisdiction, and that issuing from inferior tribunals,
is not generally recognized, but still, recitals may be sufficient
in the one case and not in the other. The distinction drawn by
1 Starr v. Bennet, 5 Hill, 303.
a Bradley v. Wyndham, 1 Wils. 44; Clark v. Foxcroft, 6 Greenl. 296.
8 Billingsby v. Rankin, 2 Swan, 82.
« Stuart V. Whittaker, 2 Car. & P. 100; Smallcomb v. Cross, 1 Ld. Baym. 251;
Holmes v. Clifton, 10 Ad. & E. 673.
^ The authorities upon these propositions are so numerous that it seems use-
less to attempt to cite them all. The folio win^c are some of the later cases con-
taining extensive citations of earlier adjudications : Bird v. Perkins, 33 Mich.
28; Erskine v. Hohnbach, 14 Wall. 613: Walden v. Dudley, 49 Mo. 419; McLean
t\ Cook,. 23 Wis. 364; Orr v. Box, 22 Minn. 486; Glasgow v. Rowse, 43 Mo. 479;
Lott V. Hubbard, 44 Ala. 593; Neth v. Crofut, 30 Conn. 580; Hill t). Figley, 25
in. 156; Noland v. Busby, 28 Ind. 154; Brainard v. Head, 15 La. An. 489; Nowell
V. Tripp, 61 Me. 426; Seekins v. Goodale, 61 Me. 400; Underwood v. Robinson,
106 Mass. 296; Kelley v. Noyes, 43 K. H. 209; Savacool v. Boughton, 5 Wend.
171; Cunningham v. Mitchell, 67 Pa. 78; Burton v. Fulton, 49 Pa. 151; Gore v.
Martin, 66 N. C. 371; Slate t?. Lutz, 65 N. C. 503; Webber v. Gay, 24 Wend. 486.
« 5 Wend. 170.
§ 112 IXJUBIES FROM ACTS OF PUBLIC OFFICERS. 219
some of the cases was that in the case of inferior tribunals the
officer must take notice of everything that appeared and every-
thing that did not appear in the proceedings leading to the issu-
ance of the process. But the presumption is in favor of courts
of general jurisdiction, while in the case of inferior courts enough
must appear upon the face of the proceedings to show authority,
even if the officer is not required to go behind them.
Ministerial Jiinctions imposed upon judicial oficers. — ^Minis-
terial functions may be imposed upon judicial officers, and then
their duties are not discretionary, but imperative.^ In cases of
habeas corpus^ it is usually incumbent upon the judge, if the pe-
tition makes out a prima fade case of illegal confinement, to is-
sue the writ forthwith. He may be responsible in damages if
he fails to obey the law. Justices of the peace are often in-
vested with ministerial functions, and they are liable, if they re-
fuse to issue a summons to a person who lawfully demands it,
or an execution on a judgment they have rendered,^ or to enter
up a judgment rendered, and generally if they refuse or neglect
to perform their ministerial duties,^ as to take security on issu-
ing a writ of replevin, or security on appeal, or issuing an at-
tachment without the statutory requisites.^
§ II4S. Acts of 8harifBi» etc. — In Semayne's Case (5 Co.
91} it was decided that ^* when any house is recovered by any
real action, or by- ejectment, the sheriff may break the house
and deliver the seizin or possession to the demandant or plaint-
iff," for the words of the writ are habere facias seisinam or
possessionem, and after judgment, it is not the house, in right
and judgment of law, of the tenant or defendant. That in all
oases where the king is party, the sheriff, if the doors be not
open, may break the party's house either to arrest him or to do
other execution of the king's process ; if otherwise, he cannot
enter. But before he breaks he ought to signify the cause of
^Feigiuon v. Kinnonl, 9 Clark & F. 251.
SGayior v. Hunt, 23 Ohio. (N. 8.) 255; Place v. Taylor. 22 Ohio, (N. S.) 317;
WilBon 17. New York, 1 Denio, 595; Way v, Townsend. 4 Allen, 114; Nixon c.
Hill, 2 Allen, 215; Bochester Company v. Rochester. 3 N. Y. 463.
•Faircfaild v. Keith, 29 Ohio, (N. 8.) 156; Peters ©. Land, 5 Blackf. 12.
4 Smith V. Tiawl, I Boot, 165 ; Tompkins r. Sands, 8 Wend. 462; Vosbnrgh v.
Welch, 11 Johns. 174. See Pangbnm r. Bamsay, 11 Johns. 141.
220 INJURIES PROM ACTS OF PUBLIC OFFICERS. § 112
his coming, and to make request to open the doors. That in all
cases where the door is open, the sheriff may enter the house
and do execution, at the suit of any subject, either of the body
or the goods ; but that it is not lawful for the sheriff, (after re-
quest made to open the door and denial made) at the suit of a
common person, to break the defendant's house, if the door be
not opened, to execute any process at the suit of any subject.
That the house of any one is not a castle or privilege but for
himself, and shall not extend to protect any person who flies to
his house, or the goods of any other which are brought and con-
veyed into his house to prevent a lawful execution, and to es-
cape the ordinary process of law ; for the privilege of his house
extends only to him and his family, and to his own proper goods,
or to those which are lawfully and without fraud and covin there ;
and therefore in such cases, after denial or request made, the
sheriff may break the house." ^ A barn or outhouse, uncon-
nected with the dwelling-house, is not a man's castle, and the
sheriff may therefore break open the door of such a building in
order to levy an execution.^ If aa order has been made in a
cause over which the court has a general jurisdiction, a minis-
terial oflScer, who receives the warrant or order from the clerk
to execute, and does not know that it was issued without author-
ity on the part of the court, is not responsible for his acts under
it ; and the clerk of the court, exercising merely ministerial
functions, and so long as he does exercise them and not judicial
ones, is not responsible for acts done under the orders signed
and issued by him, unless there is a total want of jurisdiction on
the part of the judge.^
If an officer peaceably obtains entrance through the outer
door, and before he can make an actual arrest is forcibly ex-
pelled from the house, and the outer door is fastened against
him, he may then break open the outer door and make the arrest,
and when he is once in the house lawfully he is justified in
breaking open the outer door to gain egress if it be locked
^Semayne's Case, 6 Co. 91; 1 Smith's L. C. 88. See Jacobs v. Measurers, 13
Gray, 74.
* Benton v. Brown, 1 Sid. 186; FuUman v. Steams, 80 Vt. 443.
'Andrews v. Morris, 1 Q. B. 3; Dews v. Biley, 11 Com. B. 434; Dyne v. Hoover,
20 How. 65; Brown v. Mason, 40 Vt. 157; Woods v. Davis, 34 N. H. 328; Shaw v.
Davis, 65 Barb. 389; M'Lean v. Cook, 23 Wis. 364; Chase v. Ingalls, 97 Mass. 524.
§ 112 INJUBIE8 FROM ACTS OF PUBLIC OFFICERS. 221
against him.^ If, after the officer has effected an arrest, the
prisoner escape into a house, the officer may break into the
house to retake him, whether the house belong to the debtor or a
stranger, provided he has given notice of his object, and has
demanded and been refused admission.^ If the- sheriff or his
officer gain peaceable entrance to a house at the outer door, he
may break open an inner door either to seize the person or the
goods of the owner, or of a lodger therein, and having entered
in this way at the outer door, he need not demand that the inner
doors be opened before he breaks them, in order to seize goods
under a fi^fa? If a sheriff acts under a genuine writ, both he
and his officers acting under him are protected by it, although it
be on the face of it merely irregular, because they are bound
to execute it, and a fortvyri^ a writ regular upon its face, and
issued by a court of competent jurisdiction, is always a protec-
tion to the officer who serves it.* And an officer is protected by
process regular upon its face, although at the time he executed
it he knew of facts making it void for want of jurisdiction.^
But where process is void upon its face, as when issued by an
officer not authorized by law to issue such process, the process
is no justification to the officer executing it. A warrant, for in-
stance, issued by a justice of the peace without authority, is no
1 PiiRh V. Griffith, 7 Ad. & E. 827; Aga Kurboolie Mahomed, 4 Moore P. C. C.
2d9.
> Anon. Lofft. 390; 7 Mod. 8. See Sandon v. Jenris, £1. B. & £. 930; Lloyd v.
SandilandB, 8 Taunt. 250.
8 Hutchinson v. Birch, 4 Taunt. 618; Lloyd v. Sandilands^ 2 Moore, 210; Lee t?.
Gansell, 1 Cowp. 1; Lofift. 374.
^ Countess of Rutland's Case, 6 Rep. 54a; Cotes v. Michill, 3 Lev. 20; Slomer
t?. People, 25 III. 70; Beatty r. Perkins, 6 Wend. 382; Churchhill «. Churchhill, 12
Vt. 661; Warner v, Shedd, 10 Johns. 138; Donahoe v. Shed, 8 Met. 326; Fortner
V. Flama^an, 3 Port. 257; Milbam v. Oilman, 11 Mo. 64; State v. McNall, 34 Me.
210; Wilton M. Co. v. Butler, 34 Me. 431; Woods v. Davis, 34 N. H. 328; BilUngs
V, Russell, 23 Pa. 189; Twitchell v. Shaw, 10 Cush. 46; Woods v. Davis, 34 N. H.
328; Neth v. Crofut, 30 Conn. 580; Bogert v. Phelps, 14 Wis. 88; McLean v. Cook,
23 Wis. 364,
^People V. Warren, 5 Hill, 440; Brainard v. Head, 15 La. An. 489; Hart v.
Dubois, 20 Wend. 236; Wall u. Trumbull, 16 Mich. 228; Bird r. Perkins, 33 Mich.
28; Webber «. Gay, 24 Wend. 485; Wilmarth v. Burt, 7 Met. 257; Watson v.
Watson, 9 Conn. 140; Belk r. Broadbent, 3 T. R. 183; Richards v. Nye, 5 Oreg. 382.
But see Grace v. Mitchell, 31 Wis. 533; McDonald t*. Wilkie, 13 HI. 22; Leach-
man V. Dougherty, 81 Dl. 324. But it is also held that a sheriff is not liable who
suffers a prisoner arrested on a warrant to escape, though the warrant is fair on
its face, if it issued without the preliminary showing required by statute.
(Housh V. People, 75 lU. 487.) .
222 INJURIES PROM ACTS OF PUBLIC OPPICER8. § 118
protection to the officer executing it. And an execution issued
by a magistrate against a defendant who has not been sum-
moned before him, is void, and no protection to the officer who
levies it.^
§ 113. Public ofELcen. — Public officers, employed in the
public departments, in the conduct and management of the pub-
lic business of the country, are not responsible for the negligence
and misconduct of those who act under them, although the sub-
ordinate officers have been appointed by them. Thus in Eng-
land, the Lords Commissioners of the Treasury, the Commis*
' sioners of Customs and Excise, the Auditors of the Exchequer,
etc., have never been held liable in damages for the negligence
or misconduct of the inferior officers in their several departments.
So with the Postmaster-General, and Queen's Officers ; but these
officers and their subordinates are liable each for losses sustained
by his own personal negligence in the discharge of his own par-
ticular duty.^ And whenever duties of a judicial nature are im-
posed upon a public officer, the due execution of which depends
upon his own judgment, he is relieved from responsibility by
action for the manner in which he performs them.^ If he is
corrupt, he may be indicted or impeached ; but he cannot be
prosecuted by individuals to obtain redress. The wrong, if any,
is damnum absque injuria; but where ministerial duties are
imposed upon officers whose functions are chiefly judicial, and
the ministerial duty is violated, he may be held liable for this
in a civil action.^
" If we take," says Cooley,^ " the case of legislative officers,
their rightful exemption from liability is very plain. Let it be
supposed that an individual has a just claim against the State
which the legislature ought to allow, but neglects or refuses to
allow. In such a case there may be a moral wrong, but there
1 Gnerin v. Hunt, 8 Minn. 477; Stephens v, WUkins, 6 Barr. 200; Tobin v.
Addison, 2 Strob. 3; Qorton v. Frizzel, 20 111. 191.
> Lane v. Cotton, 1 Salk. 17; Sawyer v. Corse, 17 Gratt. 230; Bichmond v. Long,
17 Gratt. 375; Whitfield v. Lord de Despenser, Cowp. 765; Barry v, Amand, 10
Ad. & £. 070.
*Donahoe r. Richards, 38 Me. 376; Kendall v. Stokes, 3 How. 97; Beed v, Oon-
wfty, 20 Miss. 22.
4 Rochester Company v. Bochester, 3 K. T. 468: Wilson v. Mayor, I Den. 099.
dee Plummer v. Harbnt, 5 Clarke, 308; Tracy v. Swartwout, 10 Peters, 80.
6 See Cooley on Torts, 376.
§ 113 INJURIES FROM ACTS OF PUBLIC OFFICERS. 228
can be no legal wrong. The legislature has full discretionary
authority in all matters of legislation, and it is not consistent*
with this that the members should be called to account at the
suit of individuals for their acts and neglects. Discretionary
power is, in its nature, independent ; to make those who wield it
liable to be called to account by some other authority, is to take
away discretion and destroy independence." This applies also to
inferior legislative bodies, such as boards of supervisors, .county
commissioners, city councils, etc.^ If these neglect or refuse to
discharge their duties, the courts may compel them to act, but
cannot compel them to reach particular conclusions, nor for.
their failure to do so impose damages upon them, or upon the
municipality they represent.^ But if some particular duty of a
ministerial character is imposed upon a legislative body, in the
performance of which its members are required to act severally,
and no liberty of action and no discretion is allowed, there may
be a private action for neglect. This is sometimes the case with
subordinate boards, such as supervisors and commissioners, and
if these ministerial duties are imposed for the benefit of indi-
viduals, the members may be personally responsible for failure
to perform their duties.
Executive officers, — As to exemption from liability, very much
the same general rule obtains with executive officers as with
legislative. The governor of a State, for instance, may be
Tested with a power to grant pardons and reprieves, to com-
mand the militia^ to refuse his assent to laws, and to take the
steps necessary for their proper enforcement ; but if he neglect
any of these duties he cannot be made responsible to the suffer-
ing party. In these instances the executive appears not to be
responsible in the courts for the manner in which his duties are
performed ; besides, another difficulty intervenes, viz., that he
cannot be made responsible to private parties without subordi-
nating the executive to the judicial department, and as each is
independent within its sphere under the federal system, it would
be inconsistent with the theory of republican government.^
1 Haker v. State, 27 Ind. 4S5 ; Morris v. People, 3 Den. 381 ; Bnell v, BsU, 20
Iowa, 282; WUson v. New York, 1 Denio, 596; Freeport v. Marks, 59 Pa. 253.
* WeUs V, Atlanta, 43 Ga. 67. See Morris v. People, 3 Denio, 381.
'Cooley on Torts, 377.
224 INJURIES FROM ACTS OF PUBLIC OFFICERS. § 113
General rule of liability. — " If the duty which the official
authority imposes upon an officer is a duty to the public, a fail-
ure to perform it, or an inadequate or erroneous performance,
must be a public not an individual injury, and must be redressed,
if at all, in some form of public prosecution. On the other
hand, if the duty is a duty to the individual, then a neglect to
perform it, or to perform it properly, is an individual wrong,
and may support an individual action for damages." ^ In the
case, for instance, of officers appointed to lay out, alter, or dis-
continue highways, they may decline to lay out a road which an
individual desires, or they may discontinue one which is bene-
ficial to him. There may be a damage to him, but it is damnum
absque injuria. The duty performed or neglected was a public
duty, and the officer owed no duty to him individually.^ The
State may complain, but not individuals.^ The steps taken,
however, must be in accordance with law, or the officer may be-
come a trespasser. The same general principles apply to quar-
antine officers, whose duty it is to prevent the spread of conta-
gion.^ But there are offices created for the public benefit which,
nevertheless, have duties devolved upon their incumbents which
are principally duties to individuals, and the public is only in-
cidentally benefited. Such an office is that of recorder of deeds.
He is simply required to record for those who apply to him
their individual conveyances, and upon request, and tender of
fees, to give them abstracts or copies from the record. In such
cases the right to a private action on breach of the duty is unques-
tionable ; ^ and so a ministerial officer charged by statute with
an absolute and certain duty, in the performance of which an
individual has a special interest, is liable to an action if he refuse
to perform it, notwithstanding his refusal may be prompted by
an honest belief that the statute is unconstitutional. His motive
appears to be immaterial.^ '^ An actionable wrong may be com-
i Cooley on Torts, 379.
« Waterer v. Freeman, Hob. 266.
8 Sage V. Laurain, 19 Mich. 137.
4 White V. Marshfleld, 48 Vt. 20; Fontiac v. Carter, 32 Mich. 164; Brinkmeyer
V. Evansville, 29 Ind. 187; Freeport v. Isbell, 83 HI. 440; Ogg v. Lansing, 36
Iowa, 495; Hill v. Charlotte, 72 K. C. 65; 21 Am. B. 451; Western College v.
Cleveland, 12 Ohio N. S. 376.
« Cooley on Torts, 383.
« Clark V, Miller, 54 N. Y. 528; Keith r. Howard, 24 Pick. 292.
§ US INJURIES FROM ACTS OF PUBLIC OFFICERS. 225
mitted by the recorder by refusing to receive and record a con-
veyance when it is tendered to him for recording, accompanied
with the proper fees. He may also be chargeable with a like
wrong if, in undertaking to record a deed, he commits an error
which makes the conveyance appear of record to be something
different from what it really is ; for his duty is to record it ac-
curately. In this last case the question of difficulty would con-
cern, not so much the existence of a right of action, as the •
person entitled to maintain it ; in other words, who the party is
who is wronged by the recorder's mistake." ^ When a grantee
leaves a deed to be recorded, and it is incorrectly recorded, some
cases hold that the grantee is not to be prejudiced by the
recorder's error. It is said that the person seeking to take ad-
vantage of the error, a second grantee from the same grantor
for instance, ^^ is, in effect, claiming to enforce a statute penalty
imposed upon the grantee in the deed by reason of his having
omitted to do something the law required him to do to protect
himself and preserve his rights. The law never intended a
grantee should suffer this forfeiture if he has conformed to its
provisions. The plaintiff claiming the benefit of the statute,
being, as it is, in derogation of the common law, and conferring
a right before unknown, he must find in the provisions of the
statute itself the letter which gives him that right. To the
statute alone we must look for a purely statutory right. All
that this law required of the grantee in the deed was that he
should file his deed for record in the recorder's office, in order
to secure his rights under the deed. When he does that the
requirements of the law are satisfied, and no right to claim this
forfeiture can be set up by a subsequent purchaser. The stat-
ute does not give to the subsequent purchaser the right to have
the first deed postponed to his, if the deed is not actually re-
corded, but only if it is not filed for record." In this instance the
statute provided that all deeds, etc., should '^ take effect and be in
force from and after the time of filing the same for record, and
not before, as to all creditors and subsequent purchasers," etc.^
1 Cooley oxf Torts, 384.
s Merrick t^.WaUace, 19 lU. 486. See, also, Polk v. Cosgrove, 4 Biss. 437 ; Riggs
V. Boylan, Ibid. 445; Gerrard v, Davis, 53 Mo. 322; Mims v, Mims, 35 Ala. 23;
McGregor v. HaU, 3 Stewt. & P. 397. /
D. A. L— 15.
226 INJURIES FROM ACTS OF PUBLIC OFFICERS. § 113
Such being the law, the recorder is probably not responsi-
ble in damages to the grantee unless actual damage is shown
from some subsequent occurrence, as if he should negotiate a
sale and find the erroneous record to be an obstacle to his com-
pleting the sale. Still the deed might be recorded over again,
unless it were lost or destroyed, when the consequences might
be more serious.^
There is another class of cases in which it is held that every
one has a right to rely upon the record actually made, as being
correct, and if it is erroneous, the peril is upon the owner of
the deed. An act provided that " no mortgage shall defeat or
prejudice the title of any bona fide purchaser, unless the same
shall have been duly registered." A mortgage for three thous-
and dollars was recorded as one for three hundred dollars only.
Chancellor Kent held that the true construction of the act was,
that the ^' registry is notice of the contents of it and no more,
and that the purchaser is not to be charged with notice of the
contents of the mortgage any further than they may be con-
tained in the registry. The purchaser is not bound to attend to
the correctness of the registry. It is the business of the mort-
gagee, and if a mistake occurs to his prejudice, the consequences
of it lie between him and the clerk, and not between him and
the bona fide purchaser. The act, in providing that all persons
might have recourse to the registry, intended that as the cor-
rect and sufficient source of information; and it would be a
doctrine productive of immense mischief, to oblige the pur-
chaser to look, at his peril, to the contents of every mortgage,
and to be bound by them when different from the contents de-
clared in the registry. The registry might prove only a snare
to the purchaser, and no person could be safe in his purchase
without hunting out and inspecting the original mortgage, a
task of great toil and difficulty. I am satisfied that this was
not the intention, as it certainly is not the sound policy, of the
statute." ^ The principles here laid down have been followed
in numerous other cases.^ Where a statute requires the index
1 Cooley on Torts, 385.
3 Frost V. Beekman, 1 Johns. Ch. 288, 298 ; S. G. 18 Johns. 544, reversed on
other ground; New York Life Ins. Co. v. White, 17 N. Y. 469.
* Barnard v. Campan, 29 Mich. 162; Brydon v. Campbell, 40 Md. 331; Terrell
V, County, 44 Mo. 309; Jenning's Lessee v. Wood, 20 Ohio, 261; Sanger r. Oraigae,
§ 113 INJUBIES PBOM ACTS OF PUBLIC OFFICEB8. ' 227
to give information of the contents of the deed, and what land
is conveyed by it, the record is not constructive notice of the
conveyance of anything which the index does not indicate.^
But if the purpose of indexing is only to facilitate the examin-
ation of the records by the officer himself, and not to protect
the interests of those whose conveyances are recorded, an error
in indexing, or a failure to index a deed, would not prejudice
the title of the grantee.^ It depends greatly upon the language
and intention of the statute. A recorder may be responsible
for recording papers not entitled to record, if the record when
made causes injury and he knows that the registration is unau-
thorized, as where he records a paper knowing it to be a for-
gery.* A recorder is also liable for giving an erroneous certifi-
cate, if it was an official act ; if the person calling for it had a
right to do so, and it was the duty of the recorder to give it.
But certifying as to whether a title was good or bad is not one
of his official acts, and he is probably not liable for giving an
erroneous certificate as to the character of titles. Neither does
the recorder appear to be liable for giving an erroneous certifi-
cate, except to the person who receives it from him. A subse-
quent purchaser receiving the certificate with his title-deeds,
and relying upon it as accurate, cannot hold the recorder liable,
unless the certificates were purposely and knowingly made false
with fraudulent intent.*
A postmaster-general is not liable to individuals for the acts
of his subordinates, although they are for their own separate
misdeeds or neglect f nor is a postmaster liable for the loss or
abstraction of a letter by one of his sworn assistants whose ten-
ure of office depends upon the department ; ^ nor a mail carrier
10 Vt. 566; Parrett v. Shaubhnt, 6 Mmn. 323; Baldwin vt Marshall, 2 Humph.
116; Heister's Lessee v. Fortner, 2 Blnn. 40; Lally v, Holland, 1 Swan, 396; Shep-
herd v. Burkhalter, 13 Ga. 444; Miller v. Bradford, 12 Iowa, 14; Chamberlain v.
BeU,7Cal.292.
^ Scoles V. Wilsey, 11 Iowa, 261; Gwynn v. Turner, 18 Iowa, 1; Breed v. Con-
ley, 14 Iowa, 269.
3 Curtis V, Lyman, 24 Vt. 338; Bishop v. Schneider, 46 Mo. 472; 2 Am. B. 633;
Commissioners v. Babcock, 6 Oreg. 472; Schell v. Stein, 76 Fa. 398.
• Bamsey v. Biley, 13 Ohio, 167.
4 Housman v. Girard Bnil^ngs &o. 81 Pa. 266; Wood v. Buland, 10 Mo. 143.
See Ware v. Brown, 2 Bond, 267.
^Hutchins v. Brackett, 22 N. H. 262 ; Bownlng t^. GoodchUd, 2 W. Black. 906 ;
Lane t;. Cotton, 1 Ld. Baym. 646; 12 Mod. 472; 1 Salk. 17.
•Schroyer v. Lynch, 8 Watts, 453; Wiggins v. Hathaway, 6 Barb. 632.
228 INJURIES FROM ACTS OF PUBLIC OFFICERS. § 113
for the loss of mail matter through the carelessness or dishon-
esty of one of his sworn assistants,^ but it is otherwise if the as-
sistant was merely his own servant or unsworn.^ So while a
sheriff is generally liable for the misconduct of his deputies, yet
if the deputy is employed to do something not connected with
his office, though perhaps employed because of the office, he is
regarded as only a private agent, and the sheriff is not responsi-
ble, as where he is employed to foreclose a chattel mortgage by
seizing the property mortgaged.® Neither is a sheriff liable
where by consent of the plaintiff the deputy acts outside the
scope of his official authority, as giving credit on an execution
sale,* or accepting anything but money in payment,^ or acting
according to the advice or direction of the plaintiff or his attor-
ney,^ or acting within a discretionary authority with which they
had invested himJ
As to officers charged with the duty of making and repairing
highways and public bridges, it has been held in New York
that an action would not lie against an overseer of highways,
at the suit of a party injured in consequence of a bridge over
which he had supervision being out of repair.® This doctrine
has been followed in other States.^ The general grounds for
these decisions are that the duty is a duty to the public, not to
individuals ; that it is compulsory ; that sometimes the neglect of
the duty is an indictable offense, and that it would be unjust to
hold them responsible out of their private estates for every in-
jury that an individual might sustain, as well as liable to be
indicted for every neglect of duty. Later New York cases,
^Hutchins v. Brackett, supra. See Barnes v. Foley, 1 W. Black. 6id; Con well
v. Voorhies, 13 Ohig, 523.
a Sawyer v. Corse, 17 Gratt. 230.
*DoTr V. Mickley, 16 Minn. 20 ; Harrington v. Faller, 18 Me. 277; Moulton v.
Norton, 6 Barb. 286.
^Gtorham v. Gale, 7 Cowen, 739; Armstrong v. G^arrow, 6 Cowen, 465.
« Moore v, Jarrett, 10 Tex. 210.
« Smith V. Berry, 37 Me. 298; Stevens v. Colby, 46 N. H. 163; Acker v. Ledyard,
8 Barb. 514; Humphrey v. Hatbom, 24 Barb. 278; Cook v. Palmer, 6 Bam. & C.
739; Tobey v. Leonard, 15 Mass. 200; Marshall v. Hosmer, 4 Mass. 60.
7De Moranda v. Dunkin, 4 T. B. 120; Strong v. Bradley, 14 Vt. 65.
8 Bartlet v. Crozier, 17 Johns. 439, reversing S. C. 15 Johns. 250.
* Young V, Commissioners, 2 Nott & McC. 537; McKenziet?. Chovin, 1 McMuU.
222; McConnell v. Dewey, 5 Neb. 385; Dunlap v. Knapp, 14 Ohio, N. S. 64; Lynn
V. Adams, 2 Ind. 143.
§ 114 INJUKIES FROM ACTS OF PUBLIC OFFICERS. 229
however, do not subscribe to this doctrine, where the officers
have the means of performing their duty, and they have notice
or should take notice of the condition of the bridsces. These
cases hold that the officers are bound to repair them with reason-
able and ordinary care and diligence, and if they omit this duty
they are liable to individuals who sustain special damages from
such neglect, and this on the ground that defective bridges are
dangerous, and travelers generally have no means of knowing
whether they are safe or not. They have to rely upon the
fidelity and diligence of the highway commissioners who are
the only persons whose duty it is to see that the bridges are in
repair.^
§ 114. Naval and military officers. — A subordinate officer
has no remedy at law against his superior for an act done in the
course of discipline, and under powers incident to his position,
so long as it is not a corrupt and malicious abuse of authority.^
Nor is a naval or military officer responsible for acts done by
him in obedience to the commands of his superior offitjer, or of
the govennment he serves, unless the commands are manifestly
illegal.* Thus, where two vessels were chartered by the gov-
ernment for a naval expedition, and the captains of the vessels
were to pay implicit obedience to the orders of the officers com-
manding, and one of the vessels sustained damages from the
other whilst obeying orders, the owner of the injured vessel was
held to have no remedy at law against the owner of the other.
In such cases, however, the damage must be the natural result
of the execution of orders, and not caused by negligence or
want of nautical skill.^
1 Smith V. Wright, 24 Barb. 170; Hover v, Barkhoof, 44 N. Y. 113; Rectory.
Pierce, N. Y. Sup. Ct. Thomp. & C. 416. See, also, Hathaway o. Hinton, 1 Jones
N. C. 243; Huffman v. San Joaquin County, 21 Cal. 426; Sutton v. Board, 41 Miss.
236; County Commissioners v. Duckett, 20 Md. 468; County Commissioners v.
Gibson, 36 Md. 229. A notary public is not liable if he obeys directions, though
they turn out to be erroneous. (Commercial Bank v. Varnum, 49 N. Y. 269.)
See generally, as to liability of notaries, Emmerlin^ v. Graham, 14 La. An. 389;
Warren Bank v, Parker, 8 Gray, 221; Franklin v. Smith, 21 Wend. 623; Bank v.
Marston, 7 Ala. 108; Bowling r. Arthur, 34 Miss. 41.
2 Johnstone v. Sutton, IT. R. 544; Wall v. McNamara, 1 T. R. 636; Grearv.
Marshall, 4 F^st. & F. 485; Dawkins v. Lord Paulet, L. R. 5 Q. B. 94; S. C. 9
Best. & S. 768; Dawkins v. Lord Rokeby, 4 Fost. & F. 806.
* Buron t;. Denman, 2 Ex. 167; Biggs v. State, 3 Cold. 85.
* Hodgkinson v. Femie, 2 Com. B. N. S. 436.
230
INJURIES FROM NEGLIGENCE.
§116
CHAPTER XU.
INJURIES FROM NEGLIGENCE.
§ 115. Injuries from negligence.
§ 116. Remote and proximate damages.
§ 117. Remote consequences.
§ 118. Remote consequences—Injuries from fire.
§ 119. Injuries caused by railway locomotives.
§ 120. Contributory negligence.
§ 121. Plaintiffs duty to prevent injury.
§ 122. Contributory negligence on part of servants.
§ 123. Contributory negligence— Injuries to children.
§ 124. Negligence of master— Injuries to servants.
§ 125. Injuries to servant— Exemption of master.
§ 126. Injuries to servants from their fellow-servants.
§ 127. Negligence of servants.
§ 128. Negligent mduagement of chattels— Inevitable accident.
§ 129. Successive negligence of two or more.
§ 130. Contemporaneous negligence. %
$ 131. Intervening negligence.
§ 132. Mutual negligence.
§ 133. Negligence of medical men.
§ 115. Negligence, injuries from. — In actions for injuries
through negligence, it is a general principle that a person is an-
swerable for the consequences of his negligence only so far as
they are the natural and proximate results of the injury, and
might have been anticipated by ordinary forecast, and not for
those consequences arising from a conjunction of his fault with
circumstances of an extraordinary nature. The damages must be
both the natural and proximate consequence of the act com-
plained of, and the direct and not remote result of the defend-
ant's wrong. Whenever there intervenes the independent act
of a third person between defendant's negligence and the injury
sustained, and it affects the result and is the immediate cause of
injury, the plaintiff cannot recover against the original wrong-
doer.^ But, however plain the general principle may appear,
1 Fairbanks v. Kerr, 70 Pa. 86; Ryan v. Company, 36 N. Y. 210; Cuff v. New-
ark Company, 35 N. J. L. 17 ; Whart. on Negligence, sec. 131; Field on Damages,
§ 115 INJURIES FBOM NEOLIGENOE. 281
there has arisen the utmost difficulty in its application. What
results are proximate and will give the plaintiff a right of ac-
tion ? And what consequences are so remote that the plaintiff
is remediless, and is practically a victim of the doctrine of
damnum absque injuria? The theories of metaphysicians on
the subject of causation hav^ been brought forward to assist
the law, and not always with the happiest results.^ Suppose
through the negligence of a railroad company the house of A,
near a railroad, is set on fire, without his fault, by sparks and
cinders from a locomotive of the company, and is consumed,
and the fire communicating itself to the buildings of B, C, and
D, successively, such buildings are successively consumed, and
without the owners' fault : is the company liable to B, C, and
D ? — or would the company be liable to the inhabitants of a
whole city, should the fire communicate to it? — and if not, where
is the line to be drawn? If a man eats of a particular food,
harmless to others, but which disagrees with his particular state
of health, or his peculiar constitution, and he dies, which is the
remote and which the proximate cause of his death — the food
he partakes of, or the weakness or defects of his frame ? If his
constitution had been different, or if he had not partaken of the
food — in either event — ^he might have lived. If it be readily
answered that the dish was the proximate cause, the question
arises, but what caused the man's death? John Stuart Mill
would reply, both together; or both combined with previous
causes, as those things which originally impaired the man's
health, etc. ; or, as he terms it, the ^^ sum of all the anteced-
ents." But this is not of much assistance to a jury. The au-
thorities on the subject are conflicting. It has been held that
where, through the defective condition of defendant's locomo-
tive, a quantity of wood was ignited in one of the company's
sheds, and the shed was consumed, and that fire communicated
to and consumed the plaintiff's house about one hundred and
thirty feet distant from the shed, the plaintiff could not recover
from the company .^ In this case. Hunt, J., said : " If an en-
sec. 6(H. See John Stuart Mill on the subject of Causation, 1 Mills' Logic, 2nd.
* liond. ed. 396.
^See article by Wharton, Southern Law Rev. Jan. 1876; Whart. on Neg.
Appendix.
2 Kyan v, N. Y. Central R. R. Co. 36 N. Y. 210.
232 INJURIES FBOM NEGLIGENCE. § 115
gineer upon a steamboat or locomotive, in passing the house of
A, 80 carelessly manages its machinery that coals and sparks
from its fires fall upon and consume the bouse of A, the rail-
road company or the steamboat proprietors are liable to pay the
value of the property thus destroyed,^ Thus far, the law is
settled, and the principle is apparent. If, however, the fire
communicates from the house of A to that of B, and that is de-
stroyed, is the negligent party liable for this loss ? And if it
spreads thence to the house of D, and thence consecutively
through the other houses until it reaches and consumes the
house of Z, is the party liable to pay the damages sustained by
these twenty-four sufferers ? The counsel for the plaintiff does
not distinctly claim this, and I think it would not be seriously
insisted that the sufferers could recover in such case. Where^
then, is the principle upon which A recovers and Z fails ? It
has been suggested that an important element exists in the dif-
ference between an intentional firing and a negligent firing merely ;
that when a party designedly fires his own house, or his own
fallow land, not intending, however, to do any injury to his neigh-
bor, but a damage actually results, that he may be liable for
more extended damages than where the fire originated in accident
or negligence. It is true that most of the cases where the liabil-
ity was held to exist were cases of intentional firing. * * *
Without deciding upon the importance of this principle, I pre-
fer to place my opinion upon the ground that in the one case —
to wit, the destruction of the building upon which the sparks
were thrown by the negligent act of the party souglFt to be
charged — the result was to have been anticipated the moment
the fire was communicated to the building ; that its destruction
was the ordinary and natural result of it« being fired. In the
second, third, or twenty-fourth case, as supposed, the destruction
of the building was not a natural and expected result of the
first firing. That a building upon which sparks and cinders fall
should be destroyed or seriously injured must be expected ; but
that the fire should spread and other buildings be consumed is not
a necessary or an usual result. * * * To sustain a claim like
the present, and to follow the same to its legitimate consequen-^
ces, would subject to a liability against which no prudence
1 Field V. Company, 32 N. Y. 339.
§ 116 IKJUBIE8 FBOM N£OLIGENC£. 288
could guard, and to meet which no private fortune would
be adequate. Nearly all fires are caused by negligence in its
extended sense.
*' In a country where wood, coal, gas, and oils are universally
used, where men are crowded into cities and villages, where
servants are employed, and where children find their homes in
all houses, it is impossible that the most vigilant prudence should
guard against the occurrence of accidental or negligent fires." ^
So where a railroad company, through its negligence, set fire to
the house of another, and the fire therefrom was communicated
to the house of a third party, which was consumed with its con-
tents, the company was held not liable for the loss of the last
building, on the ground that a party guilty of negligence pro-
ducing loss is not liable for all the ensuing and remote conse-
quences.* These are cases where the loss has been held dam-
num ahsq^ue injuria. It cannot, however, be denied that there
are many recent and well-considered cases to the contrary, and
where such damages have been held not too remote. As it is
not our purpose to deal with cases where a recovery has been
allowed, a reference only will be made to them in the note. The
authorities upon the subject are in direct conflict, and the facts
presented in some of the adverse cases are virtually the same.'
•
§ 116. Remote and proximate damages. — Where de-
fendant's servant, in breach of an act of Parliament, washed a
carriage in a public street, and allowed the waste water to run
down a gutter toward a grating leading to a sewer, but in con-
sequence of the grating being stopped up, without the defend-
ant's knowledge, the water flowed over the road, and subsequently
froze, and defendant's horse slipped upon the ice and injured
1 Ryan v. N. Y. Central R. R. Co. 36 N. Y. 210.
* Pa. R. R. Co. V. Kerr, 62 Pa. 363.
* That the plaintiff may recover, and that such damages are not too remote,
see Fent v. Toledo &c. Compaily, 69 111. 349; Kellogg v. Company, 26 Wis. 223;
Atkinson v. Company, 12 Kan. 354; Annapolis Co. v. Gantt, 39 Md. 116; Ridgely
p. Hewitt, 6 Ex. 240; Greenland v. Chaplin, 6 Ex. 243; Montoyer v. Company, 6
Ex. 451; Tweed v. Insurance Co. 7 Wall. 44; Illidge v. Goodwin. 24 Eng.C. L.
272; Powell v. Deveney, 3 Cush. 300; Lynch v. Nurdin, 41 Eng. C. L. 422; Van-
denburgh «. Truax, 4 Den. 464; Hart v. Company, 13 Met. 99; Perley u. Company,
96 Mass. 414; Cleveland u. Company, 42 Vt. 449; Piggott r. Company, 64 Eng.
C. L. 229; Smith r. Company, 6 Iaw R. Com. P. 98; Scott v. Shepherd. 2 W.
Black. 292.
284 INJURIES FROM NEGLIGENCE. § 117
himself, the damage was held too remote to fix the defendant's
liability. And in actions for slander, where a third person inter-
venes and repeats the slanderous words, and the language is not
actionable per 86, and if it had not been for the intervention
and repetition by the third person, no actual damage would
have been suffered, the original utterer has been held not
liable.^
§ 117. Remote consequences. — Many cases of remote
damages may be said to be cases of damnum absque iryuria^
when they are not in the direct line of causation, nor the loss
the direct and natural result of the injury or part of the chain
of results. For instance, where a singer in the plaintiff's theater
had been libeled, and a suit was brought by the proprietor of
the theater against the publisher, and it was alleged that by
reason of the libel the singer had been deterred from singing,
whereby his profits were lost, it was held by Lord Kenyon that
the damages were too remote ; that if damages had occurred
they might have been occasioned by the vain fear or caprice
of the actor. There might have been an intervening cause, not
the legitimate result of the injury.^ And where a horse, being
driven with due care, became jErightened by the striking of the
vehicle he was drawing against a defect in the highway, which
it was the duty of the defendant to keep in repair, and escaping
the control of the driver, at the distance of fifty rods from the
defect, injured the plaintiff, who was on foot in the highway,
and who was using due care, the court held that the defendant
was not responsible for the injury.^ But if the injury had been
to the driver, or one riding in the sleigh, it was conceded that
there would have been no question< as to the liability of the de-
fendant. And where a drafted man deserted before being mus-
tered into the service, and the plaintiff, in consequence, was
drawn and obliged to serve in the army in place of the deserter,
and brought a suit against him for theMamages sustained there-
i Sharp V. Powell, L. R. 7 Ex. 263; Olmstead v. Brown, 12 Barb. 657; Ward «.
Weeks, 7 Bing. 211. •
2 Ashley v, Harrison, Peake, 193; S. C. 1 Esp. 48. See Taylor v. Neri, 1 Esp.
386.
8 Marble v. Worcester, 4 Gray, 395. But see Wiley r. Belfast, 61 Me. 569; Clark
V. Lebanon, 63 Me. 393.
§ 118 INJUBIES FROM NEGLIGENCE. 285
by, the damages were held too remote and contingent to sustain
the action.^
§ 11& Injury from fire — Where negligence too remote.
Where, by the negligence of another, a building was burned,
and the fire spread to and destroyed an adjoining house, the
negligence was considered too remote to give the owner of the
latter house a remedy for his loss against the party by whose
negligence the fire originated.^ In a Pennsylvania case the
court say : " There are often very small faults which are the
occasion of the most serious and distressing consequences.
Thus, a momentary act of carelessness set fire to a little straw,
and that set fire to a house, and by an extraordinary concurrence
of very dry weather and high winds, with this fault, one-third
of a city — ^Pittsburgh — was destroyed. Would it be right that
this small act of carelessness should be charged with the whole
value of the property consumed ? " ^ And so it has be^n asked,
" Should the careless act of the woman who originated the great
fire at Chicago make her liable in damages for all the losses that
resulted therefrom ? " * In some States the question of negli-
gence in such a case, whether the loss is too remote, is deemed
proper to be left to the jury as a question of fact.^ But as to
fires caused by sparks from locomotive engines, the railroad com-
panies seem not to have been so fortunate as to altogether escape
immunity for very remote damages. As where the fire passed
over the premises of three or four different persons, and finally
burned the plaintiff's property, the company was held liable ; ^
and although some of the cases were under special statutes, the
latter, in the opinion of the courts, do not appear to have
affected the general rule. There are many cases which hold, in
such actions against railroads, that the questions of negligence
^ Dennis v. Larkin, 19 Iowa, 434.
« Ryan v. Company, 36 N. Y. 210; Pai R. Co. v. Kerr, 62 Pa. 353.
* Morrison v. Davis, 20 Pa. 171.
* Field on Damages, sec. 50, note.
* Toledo &c. V. Pindar, 63 111. 447; Ohio &c. v. Shanefelt, 47 111. 497; Illinois &c.
t'. Nnnn, 51 111. 78; Kellogg v. Chicago &c. Co. 26 Wis. 223.
^Perley v. Company, 98 Mass. 414; Gen. Stats. Mass. chap. 63, sec. 101. See
Smith V, Company, 6 Law R. Com. P. 68; 18 Week. R. 343; 21 L. T. N. S. 668; 19
Week. R. 230, affirmed on appeal; Ingersoll v. Company, 8 Allen, 438; Field v.
Company, 32 N. Y. 339: Webb v. Company, 3 Lans. 463. See cases contra^ cited
in § 119.
286 IN.TURIE8 FROM NEGLIGENCE. § 118
and contributory negligence are properly for the jury to determ-
ine, and that '^ the maxim, causa proxima et non remota spec-
tatur^ is not limited by time or distance, nor by the succession
of events." ^ The cases in regard to railroads have been con-
sidered irreconcilable with the other cases already referred to in
regard to remote damages, where the courts have considered
them too remote as a question of law.^ In actions for seduction,
loss of service resulting from the illness of the woman seduced,
caused by mere distress of mind, owing to the desertion of the
seducer, or of illness in consequence of being threatened with
exposure, in a suit against the defendant for the seduction, have
been held too remote damages ; ^ and so have the probable ex-
penses of supporting the illegitimate child.^ In an action for
malicious prosecution, whereby the plaintiff was driven to an
assignment, and loss occurred in the sale of goods under the
assignment,^ and in an action for damages resulting from a rail-
road collision, where it appears from the character of the frac-
ture of the plaintiff's leg that it was probable that a second
fracture would take place,^ these consequences and probable
results were held too remote to entitle the plaintiff to recover
therefor.
In regard to liability for remote damages, Field remarks'" that
" it is impossible to deduce a rule from the conflicting decisions.
On the one hand there is a sentiment, perhaps in accord with a
sound public policy, that the mere negligent tort-feasor should
not be held for all those remote but direct losses which may re-
sult from his negligence. While the doctrine of the court in
1 KeUogg r. Company, 26 Wis. 223; Martin v. Company, 23 Wis. 437; Piggott
t'. Company, M B. C. L. 228; Vaugh v. Menlove, 7 C. & P. 626; 32 E. C. L. 613;
Hewey v. Nourse, 64 Me. 266; Bachelder v. Heagau, 18 Me. 32; Cleveland v. Com-
pany, 42 Vt. 449; Barnard v. Poor, 21 Pick. 378; McCready v. Company, 2 Strob.
366; Fero v. Company, 22 N. Y. 209; Freemantle v. Company, 100 E. C. L, 88;
Hart V. Company, 13 Met. 99; Ingersoll v. Company, 8 Allen, 438; Hooksett v.
Company, 38 N. H. 242.
2 Field on Damages, sec. 62.
8 Knight 0. Wilcox, 14 N. Y. 413; Boyle r. Brandon, 13 Mees. & W. 738.
* Haynes v. Sinclair, 23 Vt. 108.
8 Donnell v. Jones, 13 Ala. 490. See Fitzjohn r. McKidder, 2 L. T. N. S. 374;
Burnap v. Wright, 14 111. 301.
Lincoln v. Company, 23 Wend. 426. See Stone r. Codman, 16 Pick. 397;
Brown v. Canunings, 7 Allen, 607.
7 Damages, sec. 63.
§ 118 INJURIES FROM NEGLIGENCE. 237
Syan v. The New York Central Railroad Company^ would hold
a company responsible for a fire directly caused by its negli-
gence, as where a house should be ignited by sparks blown di-
rectly from the company's locomotive, still if the sparks first ig-
nite combustible substances belonging to the company, and from
thence fire is communicated to another's property, and he sus-
tains loss, no recovery can be had of the oompany. In case of
the willful firing of one's own or another's building, a more ex-
tended rule of damages would be applicable, and the willful
wrong-doer would be held on general principles to contemplate
all the damages which legitimately follow, and be liable for all
the consequences of his wrongful act, however remote the
results or overwhelming the disaster.^ And perhaps we may
say, in the light of the adjudications on this subject, that the
rule seems to vary in different cases, and to be limited, or extend
to losses more or less remote, depending upon the motives or
degree of negligence. " * Where the owner of a horse negligently
allowed it to stray at large, it was considered that the owner
would be responsible for all such damage as in the ordinary
sequence of events might be expected to occur therefrom, such
as the horse's walking into a neighboring pasture, consuming
grass, etc., but not for a kick to a child in the road, unless it
were shown that the horse was naturally of a vicious disposi-
tion, and wont to kick, and that the owner knew it.^ The mere
fact of diseased sheep getting among the plaintiff's healthy
flock, and infecting it with the disorder, establishes no cause of
action against the owner of the former unless it be proved that
defendant knew them to be infected, and neglected to take
proper and reasonable precautions to prevent them from getting
mixed with healthy flocks.* At common law, if the owner of a
dog allowed the dog to stray away, and the dog trespassed upon
neighboring land, and worried and killed a neighbor's sheep, the
owner of the dog was not responsible for the damage done, as
136N. Y. 210.
« Allison 17. Chandler, 11 Mich. 542. r^ . aoa
•Scott r. Shepard, 2 W. Black. 893; Vandenburgh v. Truax, 4 Demo, 484;
Goille V. Swan, 19 Johns. 381. „ xr a aqa ^o
*Holden V. Shattuck, 34 Vt. 336; Cox ». Burbidge, 13 Com. B. N. ». 4JU; J^
Law J. Com. P. 89. But see EHckson v. McCoy, 39 N. Y . 400.
» Cooke V. Waring, 32 Law J. Ex. 262; Fisher v. Clarke, 41 Barb. 329.
238 INJURIES FROM NEGLIGENCE. §§ 11&-20
worrying the sheep was said not to be in accordance with the
natural instinct of the animal, and might not be expected to
result from the animal's straying away ; but if the owner knew
that the dog had worried or killed sheep, the rule was different,^
§ 119. Fires caused by railway locomotives. — In the
United States it is held by numerous authorities that the mere
fact that a fire was occasioned by sparks from a railway loco-
motive does not make a prima facie case against the company,
as the emission of sparks from the locomotive is not in itself il-
legal, and negligence cannot be inferred from the fire alone. If
the company has adopted such safeguards as modem improve-
ments enable it to do, the ensuing injury appears to be damnum
absque injuria,'^ There must be negligence, or some statutory
provision to fix the liability.^
§ 120. Contributory negligence. — The plaintiff can derive
no benefit from his own wrong. Nvllus commodum capere po-
test de injuria sua propria ; and the maxim is applicable where
the party materially contributes to his own injury. He cannot
recover for such losses as result from his own or from his own
and another's fault.* In pari delicto potior est conditio defend-
entis. Whether the contribution to the injury on the part of the
plaintiff was willful, or merely the result of his negligence —
whether it consisted in doing what he ought not to have done, or
not doing what he should have done — ^if his negligence or wrong
^Ibid. Wbere a defendant bought a horse and took him out to try him in a
frequented thoroughfare, and from some unexplained cause the horse became
restive, and notwithstanding the defendant's well directed efforts to control
him, ran upon the pavement and killed a man, these facts were held not to con-
stitute any evidence of negligence which the court was authorized to submit to
a jury. The defendant knew nothing of the disposition of the horse, and exhib-
ited no want of care or skill, and did all he could to prevent the accident.
(Hammack v. White, 11 Com. B. N. S. 588.)
3 Gandy v. Company.. 30 Iowa, 420; Sheldon v. Company, 14 N. Y. 218; Frank-
•fort Company v. Philadelphia Company, M Pa. 346; Burroughs v. Company,
15 Conn. 124; Fero v. Company, 22 N. Y. 209; Rood v. Company, 18 Barb.
80; Macon Company v. McConnell, 27 Ga. 481; Smith v. Company, 37 Mo. 287.
Bnt see Hull v. Company, 14 Cal. 387; nilnois Company v. Mills, 42 HL 407.
* See as to what will constitute such negligence cases just cited, and Jackson
V. Company, 31 Iowa, 176; Webb v. Company, 49 N. Y. 430 \ Bedell v. Company,
44 N. Y. 367 ; Field i;. Company, 32 N. Y. 339.
« Aurora &c. v. Grimes, 13 HI. 586; Chicago Co. v. George, 19 HI. 610.
§ 120 INJURIES FROM NEGLIGENCE. 289
■
proximately contributed to produce the injury of which he com-
plains, so that but for his concurring and co-operating fault the
injury would not have happened to him, he cannot recover
therefor. •As between the parties, the injury must be caused
by the defendant's fault. Nor can the plaintiff recover if the
injury is the result of the want of ordinary care on the part of
both, or if, by the use of ordinary care, he might have avoided
the injury."^ The proposition that a person cannot recover
damages where, by his own negligence, he has exposed himself
to injury, is sustained by numerous authorities, both English and
American.^ It may be stated as a general rule that it is a defense
to an action of tort that the negligence of the plaintiff contribu-
ted to produce the damage complained of.^ The law makes
men liable for those torts alone which they have caused. If
the defendant did not— either personally, or by another under his
iShearm. & Redf. on Negligence, sec. 25 and notes; Spencer v. Utica &c. 5
Barb. 337; Brown v. MaxweU, 6 Hill, 592; Duggins v. Watson, 15 Ark. 118; Grip-
pen V, Company, 40 N. Y. 34; Bigelow t7. Reed, 51 Me. 326; Reeves v. Company,
30 Pa. 454; Beers v. Company, 19 Conn. 566; Beatty v. Gilmore, 16 Pa. 463.
2 Murphy v. Dean, 101 Mass. 455; Wheelock v. Company, 105 Mass. 403; Wilds
V, Company, 44 K. Y. 430; Adams v. Carlisle, 21 Pick. 146; Butterfield v. Forres-
ter, 11 East, 60; Sill r. Brown, 9 Car. & P. 601; Griffiths v, Gidlord, 3 Hurl. & N.
648; Yanderplank v. Miller, 1 Moody & M. 169; Lygo v. Newbold, 9 Ex. 302;
Great N. R. r. Harrison, 10 Ex. 376; Caswell v. Worth, 6 El. & B. 549; Kennard
V. Burton, 25 Me. 49; Webb v. Company, 57 Me. 117; State v. Company, 52 N. H.
528; Robinson v. Cone, 22 Yt. 213; Gahagan v. Company, 1 Allen, 187; Garrett t;.
B. B. 6 Gray, 64; Berge v. Gardner, 19 Conn. 507; Grippen v. R. R. 40 N. Y. 34;
SUliman v. Ijewis, 49 N. Y. 255; Blakely v. LeDuc, 19 Minn. 187; 111. Cent. R. v.
Baches, 55 111. 379; Pittsburgh & F. W. R. v. Methuen, 21 Ohio St. 683; Moore v.
Cent. R. R. 4 Zab. 284; Morris & E. R. v. Haslan, 33 N. J. 147; New Jersey Ex.
Co. V. Nichols, 33 N. J. 434; Pennsylvania R. R. Co. v. Goodman, 62 Pa. 329;
Baltimore & O. R. v. Fitzpatrick, 35 Md. 32; Kelly v, Hendric, 26 Mich. 255; Gay
V, Winter, 34 Cal. 153; Needham v. San Francisco R. R. 37 Cal.400; Baird v. Mor-
ford, 29 Iowa, 531^ Wheeler v. Westport, 30 Wis, 392; Macon &c. v. Bab^, 42 Ga.
327; Morrison v, Cornelius, 63 N. C. 346; Kahn v. Love, 3 Oreg. 206; Union &c.
V. Nottingham, 17 Gratt. 115; Walsh v. Company, 52 Mo. 434; Fleytas t;. Com-
pany, 18 La. An. 339; Hill v. R. R. 11 La. An. 292; Knight v. R. R. 23 La. An.
462. A company owning a steam-tug contracted to tow a canal-boat at the risk
of the latter' s master and owner. While the canal-boat was being towed, her
master faUed to display proper lights, by reason of which another tug of the
same company ran into and sunk her, and her cargo was lost. In an action by
the owners of the cargo against the company, it was held that the latter were
not masters of the canal-boat pro hoc vice^ nor common carriers of the canal-
boat, nor chargeable with the negligence of her master, and that the plaintiffs
could not recover on any ground, being themselves guUty of contributory negli-
gence. (Arctic F. Ins. Co. v. Austin, 69 N. Y. 470.)
* Murphy v. Deane, 101 Mass. 455.
240 INJURIES FROM NEOLiaENCE. § 120
authority, express or implied — cause the damage, he is not liable.
If there has intervened between the act or omission of the de-
fendant and the damage sustained by the plaintiff an act or
omission which contributed to effect the damage, the injury
might not have happened ; and so where the fault is contempo-
raneous, as in some cases of collision, where the fault on either
side might have been sufficient to produce the injury. These
rules appear plain in theory, but the courts have found them ex-
ceedingly difficult in their application. It will be necessary to
discuss the subject at length. We shall endeavor to show what
will defeat recovery, as that alone comes within the scope of
this book. Wharton in his Treatise on Negligence says : " The
true ground for the doctrine is, that by the interposition of the
plaintiff's independent will, the causal connection between the
defendant's negligence and the injury, is broken. The principle,
however, must be accepted with qualifications. There must be
a causal connection between the plaintiff's negligence and the
injury. The plaintiff, as a rule, must be a person to whom the
alleged contributory negligence is imputable — excluding, there-
fore, persons distracted by sudden terror ; persons of unsound
mind and drunkards ; persons deprived of their senses, and in-
fants. If the defendant is guilty of gross negligence, he cannot
set up a trifling negligence or inadvertence of the plaintiff as a
defense." ^ If, by want of ordinary care, a plaintiff may have
avoided the consequence of defendant's negligence, he is consid-
ered to be the cause of his own injury ; ^ and where the conse-
quences of the defendant's negligence have subsequently been
aggravated by the want of ordinary care, or by the negligence
of the plaintiff, this may go in mitigation of damages ; but it
cannot' defeat the plaintiff's right to recover for fhe wrongs for
which the defendant is responsible.^ The plaintiff cannot re-
cover, notwithstanding defendant's negligence, if he has so far
contributed to the accident by the want of ordinary care that but
for that the accident would not have happened ; but though the
plaintiff has so contributed to the accident, he is not disentitled to
^Whart. on Keg. sees. 300, 901.
> Hance v. Company, 26 N. Y. 42S; Bridge v. Company, 3 Mees. & W, 244.
* Sherman v. FaU Biver Iron Works, 6 AUen, 213; Chase v. Company, 24 Barb.
273; Wright v. Company. 20 Iowa, 196.
§ 120 INJURIES FBOM NEGLIGENCE. 241
recover if the defendant, by ordinary care, could have avoided the
consequences of the plaintiff*8 neglect ; and when, but for the
plaintiffs negligence at the time, he might have escaped the
consequences of the defendant's negligence, he cannot recover.^
As remarked in an Iowa case, ^' the leading principle here laid
down is that the plaintiff cannot recover for an injury resulting
from the negligence of the defendant, if, notwithstanding such
negligence, his own want of care and prudence, or that of the
party injured, in any way contributed directly to the injury,"
This language was held in a case in which the plaintiff's intes-
tate brought an action for wrongful treatment of the deceased,
and for injuries received through negligence, whereby the death
of the deceased was alleged to have been occasioned. It ap-
peared that the deceased got upon the cars after dark ; that he
was very drunk ; that he did not pay his fare when demanded
by the conductor. For this reason he was thrown or dragged
from the train about four o'clock A. M. Six or more hours
thereafter, at a point nearly one-half mile from the depot where
he had been left, he was run over by another train. The jury
rendered a verdict of $1,500 for the plaintiff, and the appellate
court awarded a new trial.^ Where bricklayers employed by
the defendant had wrongfully laid rubbish before the defend-
ant's door, by the side of a highway, and whilst the plaintiff
was passing in his chaise the wind raised a whirlwind of the
rubbish, which frightened the plaintiff's horse and caused it to
start on one side in the direction of an approaching wagon, and
the plaintiff, to prevent the horse from running against the
wagon, pulled him sharp around, and the horse then ran over a
lime-heap before another person's door, and the shaft was broken
by the shock, and the horse, being then still more frightened,
1 Scott V. Company, 11 L B. C. L. 387; Griggs v, Fleckenstein, 14 Minn. 81;
Donaldson v. Company, 18 Iowa, 280; McAnnick v. Company, 20 £owa, 338;
Drake t7. Mount, 33 N. J. L. 441.
' Haley v. Company, 21 Iowa, 15. The general principle announced in this
case is correct, bat perhaps it would have been better to have rested the failure
to recover upon the ground that, under the peculiar facts of the case, the injury
was too remote as against the defendant. It could not have been fairly inferred
that deceased would have wandered a half mile from the depot and then have
been killed by another train. If he had remained on the track at the depot
the case would have been different. See Bedfleld on Hallways, 330; Brown v.
Company, 60 Mo. 461; Walsh v. Company, 52 Mo. 434.
D. A. I.— 16.
242 INJURIES FROM NEGLIGENCE. § 120
ran away, upset the chaise, and threw out and injured (he
plaintiff, it was held that although defendant was to blame for
putting the rubbish by the side of the road, yet if the plaintiff's
running against the second heap of rubbish was caused by his
pulling the horse around too sharply, the immediate cause of
the injury was his own unskillfulness in the management of
his horse rather than the wrongful act of the defendant.^
Where the plaintiff complained that the defendant had hired
him to carry a load of lumber, and that he carried the load to
the place of destination, and asked the defendant where it was
to be deposited, but the defendant would give no directions, and
made the plaintiff's horses, which were heated, stay so long in
the wagon that they took cold, and some of them died, and the
rest were disabled,' the immediate cause of the injury was held
to be the plaintiff's own neglect in not putting the horses in a
stable, and the defendant was held not responsible.^ Where
the defendant left the wooden covering of a cellar leaning
against the wall, and the plaintiff, a child seven years old, got
upon it and jumped from it, and in consequence thereof it fell
upon him and injured him, he was considered to be without
remedy against the defendant ; ^ and where one exposed for sale
a machine which any passer-by might set in motion, and which
was dangerous when set in motion, and the plaintiff, a boy of
four, by direction of his brother put his hands in the machine
while his brother set it in motion, he was not allowed to recover
against the owner of the machine.^
It is to be observed that the doctrine of contributory negli-
gence is to be taken with this qualification, that if, in addition
to the negligence of defendant, there enters the element of mal-
ice or pure willfnlness, the contributory negligence of plaintiff
is a false quantity, and defendant is liable. Although one
may have placed himself in a position of danger, yet if the de-
fendant needlessly, or wantonly, or recklessly injures him, the
plaintiff can still recover.^ Yet in the absence of such wilf ul-
1 Flower v. Adams, 2 Taunt. 314.
a Virtue v. Bird, 2 Jjev. 196.
» Abbott V. Macfie, 33 Law J. Ex. 117.
* Maugan v. Atterton, Law R. 1 Ex. 239.
s Litchfield &c. v. Taylor, 81 111. 590; Indianapolis &c. v. McGlure, 26 Ind. 370;
Mulherrin t;. Delaware &c. 81 Pa. 366; Chicago &c. v. Donahue, 75 111. 106; Hartr
§ 120 INJUKIES FROM NEGLIGENCE. 248
ness or wantonness the general rule established by a greatly pre-
ponderating weight of authority, both in England and America,
is that if the injured party might 'by the exercise of ordinary
care have avoided the consequences of the defendant's negli-
gence, and did not, the defendant will neither be held liable, nor
will the damages be apportioned between the parties.^
Further instances. — Where there were five parallel railroad
tracks, and cars were constantly passing, and plaintiff was per-
fectly familiar with the fact, his failure to look both ways was
held to be fatal negligence on his part, so that he could not re-
cover, although he had just seen a train pass ; and the negli-
gence of the agents of the company was considered immaterial.
The fact that the neighboring buildings and the nature of the
crossing made it difficult for him to see both ways, the court
said, should have made him more careful.^ So it is held gross
negligence for a person to stop on a railroad track at the usual
time for the passage of a train, and allow his attention to be di-
verted in another direction from the cars until he is thrown from
the track by a collision.® A railroad passenger cannot recover
against the company for an injury partly caused by placing his
arm or elbow outside a car window.^ So where* one attempts,
without apparent reason, to pass between cars in motion and
propelled by a locomotive.^ In an action against a company
field V. Boper, 21 Wend. 615; Norris v. Litchfield, 35 N. H. 271; Daley v. Norwich
&c. 26 Conn. 591;^Cooper v. Company, 44 Iowa, 134; Macon &c. v. Davis, 18 6a.
679; Brown v. G^pany, 60 Mo. 461; State v. Manchester &c. 52 N. H. 628.
^ A multitude of cases might be cited to sustain this rule; a few only of the
later ones will be given, which with their citations will fully establish it: Gray
V. Company, 65 N. Y. 661; State v. Company, 52 K H. 528; Central &c. r. Van
Horn, 38 N. Y. 133; Garmon v, Bangor, 38 Me. 443; Hill v. New Haven, 37 Vt.
601; Baltimore &c. v. Mulligan, 45 Md. 486; Forks Township v. King, 84 Pa. 230;
Bailroad Company v, Jones, 95 U. S. R. 439; Indianapolis &c. v. Horst, 93 U. S.
B. 291 ; Michigan &c. v. Campan, 35 Mich. 468; Murphy v. Chicago &o. 45 Iowa, 661 ;
Mobile &c. v. Ashcraf t, 48 Ala. 15 ; Western Union &c. v, Quinn, 66 HI. 319; Park v.
O'Brien, 23 Conn. 339; Jackson v. Commissioners &c. 76 N. C. 282; Laicher v. Kew
Orleans &c. 28 La. An. 320; Harlan v. Qt. Louis &c. 65 Mo. 22; Erd v. St. Paul,
22 Minn. 443; Macon &c. v. Baber, 42 Ga. 300; Memphis &c. v. Thomas, 51 Miss.
637; Heame v. Company, 50 Cal. 482; Paducah &c. v. Hoehl, 12 Bush, 41; Jeffer-
sonville &c. v. Lyon, 55 Ind. 477; Tuff v. Warman, 5 Com. B. N. S. 573; Davies
V. Mann, 10 Mees. & W. 545.
SBieseigal v. New York, 33 Barb. 429.
* Brooks V, Buffalo ^c. 25 Barb. 600. See Housatonic &c. v. Knowles, 30 Conn.
313.
*Todd V. Old Colony &c. 3 Allen, 18.
^ Gahagan v. Company, 1 Allen, 187.
244 INJUBIES FBOM NEOLIQENGE. § 120
for injuries to health by reason of the escape of gas, it was held
that if there was no want of care on the part of the company in
laying the pipes, and they had no knowledge of the escape until
notified, and then used reasonable means to ascertain where
it was, and to stop it, the plaintiff could not recover for dam-
ages sustained by him after the time when, in the exercise
of due care on his part, he might have given notice to the
defendants of the presence of gas in his house, or procured
another place of residence.^ In a case where a woman took
a position on the edge of a dock where she was likely to
be forced into the water by passing teams, and several min-
utes elapsed until she was pushed off by the striking of a
heavy wagon against a dray near her, it was held contribu-
tory negligence sufficient to defeat the action.' In cases of
collisions of ships, it has been decided that the plaintiff cannot
recover for injury done his ship by its being struck by defend-
ant's ship, in consequence of any degree of improper manage-
ment of the latter, if the former was improperly managed, and
such management directly contributed in any degree to the ac-
cident ; but if the plaintiff's negligence only remotely contrib-
uted to the accident, the question is whether the defendant by
ordinary care and skill might have prevented it.' In the case
of collision of canal-boats, if both parties are at fault, but the
collision happened in the night-time, partly from the want of
lights on the injured boat, or from its being out of its proper
place on meeting the other boat, the plaintiff c Jnnot recover.^
Where persons carelessly, or recklessly, or needlessly grope
around unknown and dark localities, or newly constructed build-
ings, or partially completed structures, and fall through trap-
doors, etc., and are injured, they cannot recover.^ It seems that
a person who makes a highway of a railroad track and is in-
jured by a train, cannot maintain an action.^ Where a person
attempts to cross a railroad track near a public highway, and
1 Hunt V. Company, 1 Allen, 343.
s Cunningham v. Lyness, 22 Wis. 246.
< Dowell V. General &c. 5 El. & B. 194.
4 Rathbun v. Paine, 19 Wend. 399.
< Boulston V. Clark, 3 E. D. Smith, 306; Beatty v. Gllnyre, 16 Pa. 4S3; Bush o.
Johnston, 23 Pa. 209; Owingji t;. Jones, 9 Md. 106; Ilott v, Wilkes, 8 Bam. &
Aid. 304.
Illinois C. B. B. v. Hall, 72 HL 222.
§ 121 INJURIES FROM NEGLIGENCE. 245
drives upon the track without looking for approaching trains,
and is injured, he cannot obtain damages, even though the rail-
read company neglects to sound the alarm required by law, at
the junction of railroads and highways.^ It has even been
held that if one is seen on the track in time for him to get out
of the way, the engineer has a right to assume he will do so,
unless he has reason to suppose he is under some disability, or
does not hear or understand the signals.^
Burden of proof . — ^In some States it is held that the burden
of proof is upon the plaintiff to show that when the injury
occurred he was in the exercise of proper care, and that the
misfortune was not caused by his own negligence ; ^ but else-
where it is established that the plaintiff is not required to give
evidence of his own care and prudence at the time.^ The de-
fendant must establish contributory negligence.
§ 121. Where it is the plaintiff's duty to prevent an
injnzy. — It is the duty of a person to use ordinary and reason-
able care and means to prevent an injury and its consequences,
and he can only recover damages for such losses as could not,
by such care and means, be avoided. It is the plaintiff's own
fault if he fails to use reasonable efforts, care, and diligence to
protect himself from injury or loss ; and where he fails to do it
he will not be permitted to say that the loss that might have
been thus avoided was caused by the wrong of the defendant,
for it is against the policy of the law, as well as common princi-
1 Rockfoid Sec. 0. Byam» 80 HI. 528; Chicago &c. v, Harwood, 80 lU. 88; Ghi-
cafco &c. V. Damerell, 81 111. 451; Railroad Co. v. Whitton, 13 Wall. 270; BeUe-
fontaine &c. v. Snyder, 21 Ohio N. S. 671; Allyn v. Boston &c. 105 Mass. 77;
Craig V. Company, 118 Mass. 431; Brown v. Company, 22 Minn. 165; Grippen v.
Company, 40 N. Y. 34; Fletcher v. Company, 64 Mo. 484; Gerety v. Company,
81 Pa. 274: Massoth f. Company, 64 N. Y. 524; Belief ontaine &c. v. Hunter, 33
Ind. 365, and other cases cited.
'2 Freeh r. Company, 39 Md. 574.
sWAmer v. Company, 44 N. Y. 465; Murphy v. Chicago &c. 45 Iowa, 661;
Galena &c. v. Dill, 22 111. 264; Wheelock v. Company, 105 Mass. 203; Vicksburg
V, Hennessy, 54 Miss. 391; JeffersonvilLe &c. v. Lyon, 55 Ind. 477; Bigelow t;.
Beed, 51 Me. 325; Lake Shore &c. v. Miller, 25 Mich. 274; Murphy v. Deane, 101
Mass. 456; Dickey v. Company, 43 Me. 492; Dyer v. Talcott, 16 HI. 300; Trow v.
Company, 24 Vt. 487; Park v. O'Brien, 23 Conn. 339; Button v. Company, 18 N.
Y. 248.
* Railroad Company v. Gladmon, 15 Wall. 401; Johnson v. Company, 20 N. Y.
65; Smoot v, Wetumpka, 24 Ala. 112; Button r. Company, 18 N. Y. 248; Penn-
sylvania Land Company v. Bentley, 66 Pa. 30; McQuilken v. Company, 50 CaL
7; Wheeler v. Westport, 30 Wis. 392; Thompson v. Company, 51 Mo. 190; Cleve-
land V, Bowan, 66 Pa. 393; St. Paul v, Kuby, 8 Minn. 154.
246 INJURIES FBOM NEGLIGENCE. § 121
pies of justice, to permit a party to reap any advantage from
his own negligence or want of ordinary care, or from his own
wrong.^ This applies whether the plaintiff's negligence con-
tributed to the injury, or whether, by his subsequent negligence
and failure to use reasonable means to prevent the consequence
of the injury, the loss is greater than it otherwise would have
been ; and in consonance with this principle, where it appeared
that the defendant had in the month .of November broken down
the plaijitiff 's fence, and the plaintiff failed to repair the same
until the following May, and in the meantime cattle got in
through the opening and destroyed a crop on the land planted
the next year, and that the action was for the loss of the crop
as well as for the expense of repairing the fence, Shaw, J.,
said : ^^ Suppose a man should enter his neighbor's field unlaw-
fully, and leave the gate open ; if, before the owner knows it,
cattle enter and destroy the crop, the trespasser is responsible.
But if the owner sees the gate open, and passes it frequently,
and willfully or obstinately, or through gross negligence, leaves
it open all summer, and cattle get in, it is his own folly. So if
one throw a stone and break a window, the cost of repairing the
window is the ordinary measure of damages. But if the owner
suffers the window to remain without repairing a great length
of time after notice of the fact, and his furniture or pictures or
other valuable articles sustain damage, or the rain beats in and
rots the window, this damage would be too remote. We think
the jury were rightly instructed that as the trespass consisted in
removing a few rods of fence, the proper measure of damage
was the cost of repairing it, and not the loss of the subsequent
year's crop, arising from the want of such fence." ^ Where
consequences have been aggravated by the gross neglect or
the want of ordinary care on the part of the ^plaintiff, the de-
fendant is not responsible for such damages. ^*It is ei^y to
imagine some trivial misconduct or slight negligence which
shall do no direct harm, but setting in motion some second
^Douglas t;. Stevens, IS Mo. 362; lUinoia Ck>. v. Flnlgan, 21 HI. 646; Broom's
Leg. Max. 279.
sjiOker f7. Damon, 17 Pick. 284; Thompson v. Shattnck, 2 Met. 615; Flower r.
Adam, 2 Taunt. 814; Miller v. Mariners' Church, 7 Greenl. 51; Hamilton v. Mo-
Pherson, 28 N. Y. 72; Davis v. Fish, 1 Greene, 407; Chase v. N. Y. &c. 24 Barb.
273; Hassa v. Junger, 15 Wis. 596.
§121 INJURIES FROM NEGLIOENGE. 247
agent shall move a third, and so until the most disastrous con-
sequences shall ensue. The first wrongdoer, unfortunate rather
t^an seriously blamable, cannot be made answerable for these
consequences. He shall not answer for those which the party
aggrieved has contributed by his own blamable negligence or
wrong to produce— or for any which such party by proper dili-
gence and ordinary care might have prevented." ^ In an action
against a county upon a quantum meruit^ for work done in the
erection of a court.-housb, the defendant for cross-claim set up
damages alleged to have been sustained by defective work and
materials. There was evidence tending to show that, owing to
the imperfect manner in which the belfry was constructed, the
roof leaked, and this caused the plastering, some time afterward,
to fall o£P, and that it would cost one hundred dollars to make
good the damage by re-plastering the same. The plaintiff, on
the trial, asked the court to give the following instructions :
**' That if the defendant could have protected itself from dam-
age which would naturally result from the alleged defects in
the construction of said court-house, it was bound to do so, if
practicable, at a moderate expense or by ordinary efforts, and
it can charge the plaintiff for such expense and efforts only, and
for the damages which could not be prevented by the exercise
of due diligence." The instruction was refused in the court
below, but on appeal, Dillon, J., said : ^^ It is our opinion that
the instruction asked was pertinent, and the case one to which
the doctrine asserted (which should be cautiously applied) was
applicable." ^ And in an action against a city for damages to
the plaintiff's lot, in consequence of a flow of water thereon,
caused by the negligent manner of constructing the gutters of
a street, it was held that they could not recover if it appeared
that they could have prevented the injury by the use of or-
dinary means or at a moderate expense, and that an instruction
that the jury must find for the plaintiffs, unless a slight expense
and slight effort would have prevented the injury, was erroneous.^
1 Harrison v. Berkley, 1 Strbb. 648; Walker v. Ellis, 1 Sneed. 515; Davis v.
Fish, 1 Greene, 406; Sto^r v. Bluehill, 51 Me. 430; Dorwin v. Potter, 5 Den. SOS.
s Mather v. Butler County, 28 Iowa, 253. ^
• Simpson V. Keokuk, 34 Iowa, 253; Cincinnati Co. v, Rogers, 24 Ired. 103;
Heavilon v, Kramer, 31 Ind. 24; State v. Powell, 44 Mo. 436; Dufort v, Abadie,
23 La. An. 280; MUler v. Roy, 10 La. An. 231.
248 INJURIES FROM NEGLIGENCE. § 122
§ 122. Contributory negligence on part of servants.
As to the question whether the master is liable for injuries
occurring to the servant through his negligence relating to the
business in which the servant is engaged, or the instrumentali-
ties connected therewith, where the servant has knowledge of
such negledt and defects, the better opinion, Mr. Field con-
siders to be, that if a party engages in a business that is hazard-
ous, or to use instruments or machinery that are defective, al-
though these facts may be known to the master, and there is
gross negligence in him in this respect, still, if the servant, with
full knowledge thereof, or after notice of the danger to which
he is thereby exposed, continues in the employment and is
thereby injured, he contributes to his own injury ; ^ that the serv-
ant is as much bound to take care of himself as the master is to
take care of him, and that if he possesses knowledge of these mat-
ters he must refuse the employment or be held to have assumed
the risks incident to the business, and cannot recover for inju-
ries resulting therefrom.* The doctrine, however, would not
apply where the service has been induced, entered upon, or con-
tinued by a promise on the part of the master to remedy the
defects or remove the cause from which the injury proceeds.*
The general rule is the same as in other cases of contributory
negligence, a master is not liable if the servant's own negligence
contributed with that of the plaintiff in producing the injury.^
There is or may be, under certain circumstances, an additional
^ Damages, sec. 185.
3 Greenleaf v. Company, 29 Iowa, 14; Hutchinson v. Company, 5 Ezch. 343;
Illinois Company v. Jewell, 46 HI. 99; Frazier v. Company, 38 Pa. 104; Mad
Elver Company t*. Barber, 5 Ohio St. 541 ; McMillan v. Company, 20 Barb. 449;
Priestly v. Fowler, 3 Mees. & W. 1 ; Seymour v, Maddox, 6 £ng. Ij. & £. 266;
Illinois Company v. Love, 10 Ind. 554; Harris t;. Northern Company, 20 N. Y.
235; Moss v. Johnson, 22 111. 642; Alsop t\ Yates, 2 Hurl. & N. 768; (Griffiths v.
Gidlow, 3 Hurl. &; N. 648; Pierce on Railways, 294; Shear. & B. on Neg. sen. 87;
Hay den v. Company, 29 Conn. 548; Hard t;. Vermont Company, 32 Vt. 473; War-
ner V. Company, 39 N. Y. 468; Laning v. Company, 49 N. Y. 521; Buzzell t;. Com*
pany, 48 Me. 113; Fifleld i;.*Company, 42 N. H. 225; Wright v. Company, 25 K.
Y. 562.
s Greenleaf v. Company, 29 Iowa, 14; Laning v. Company, 49 N. Y. 521. And
see Greenleaf v. Company, 33 Iowa, 52. ^
^Tjiompson v. Company, 54 Ga. 509; Bums v. Company, 101 Mass. 50; Chicago
&c. V. Donahue, 75 111. 106; Illinois Cent. B. B. Co. v, Patterson, 69 111. 650;
Western &c. v. Adams, 55 Ga. 279; Mulherrin v. Delaware &c. 81 Pa. 366; Hay-
den V, Company, 29 Conn. 548; Yicksburg &c. v. Wilkins, 47 Miss. 404.
§ 123 INJURIES FBOM NEGLIGENCE. 249
burden cast upon the servant to report dangers to the master,
and a failure to comply with this duty may amount to contribu-
tory negligence.^ The burden of proof to establish the master's
negligence is usually upon the plaintiff.^
§ 123. Contributive negligence — Injuries to children.
The negligence of the parent, or guardian, or person having the
custody of a young child, in allowing it to fall into danger, is
often deemed the negligence of the child, so as to affect the child
with contributory negligence, where the action would be barred
against the child. A railroad company defendant, by the neg-
ligence of their servants and the contributory negligence of a
person in charge of the child, who was too young to take care
of itself, injured the child, who was plaintiff. They were held
not liable.^ But there are authorities the other way.^ If the
child itself be guilty of negligence, and is of an age or capacity
to be guilty of negligence, there can be no recovery. Whether
the child can be guilty of personal negligence is a question of
fact, depending upon his age and ability to take care of him-
self.^ In the case of a child too young to take care of itself, it
is said that if the negligence of the parent or person in charge
were properly contributory, the defendant is not liable, as the
plaintiff cannot prove that the defendant caused the injury.^
The parent's or guardian's negligence is imputable to the child
^Ladd V. Company, 119 Mass. 412; S. G. 20 Am. B. 331; Sullivan v. Company,
9 Bush, 81; Malone v. Hawley, 46 Cal. 409; St. Louis &c. Company v. Britz, 72
HI. 256; Le Clair v. Company, 20 Minn. 9; Patterson v. Company, 76 Pa. 389; S.
C. 18 Am. B. 412; Davis o. Comi)any, 20 Mich. 105; Belair t;. Company. 43 Iowa,
662.
SQilman v. Company, 10 Allen, 233; Hildebrand v. Company, 47 Ind. 399;
Wright V. Company, 25 N. Y. 662.
» Waite V, Northeastern By. Co. El. B. & E. 719.
^ Belief ontaine & I. B. Co. v. Snyder, 18 Ohio St. 399: North Penn. B. Co. v.
Mahoney, 57 Pa. 187; Louisville Canal Co. v. Murphy, 9 Bush, 522; BfObinson v.
Cone, 22 Vt. 213.
* Lynch v. Nurdin, 1 Q. B. 29; Bronson v, Southberry, 37 Conn. 199; Lynch v.
Smith, 104 Mass. 52; Crissey t;. Company, 75 Pa. 83; Bailroad v. Oilman, 15
Wall. 401; Schmidt v. Milwaukee &c. 23 Wis. 186;' Philadelphia &c. v. Hassard,
75 Pa. 367; Dowd v. Chicopee, 116 Mass. 93. In some cases it has been decided
that the same discretion is required of a child as of an adult. (Hatfield v.
Boper, 21 Wend. 615; Pittsburgh &c. v. Vining, 27 Ind. 513; Burke v. Company,
49 Barb. 529; Brown v. Company, 58 Me. 384; Hoveysberger t;. Company, 2 Abb.
App. Dec. 378; Lygo v. Newbold, 9 Ex. 302.)
• Ihl V. Forty-second St. B. Co. 47 N. Y. 317.
250 INJURIES FROM KEOLIOENGE. § 124
when it properly contributed to the injury, because the defend-
ant cannot be shown to have caused the misfortune ; and so of
the negligence of an older brother or sister of the child, or of a
stranger having the temporary charge of the child.^ In some
cases it is held that it is necessary for the plaintiff to prove that
he was exercising due care when the misfortune happened. In
others, that the defendant must prove that the plaintiff was
guilty of contributory negligence.^
§ 124. Injiiries to senrants through negligence of mas-
ter. — A workman who engages in a dangerous employment
takes it with all its ordinary risks. The law does not impose
upon the master the obligation of taking more care of the ser-
vant than he may reasonably be expected to take of himself.
The servant is not bound to risk his safety in the service of his
master, and may decline it. The master, for instance, is not re-
sponsible for injuries sustained by his servant through the
viciousness of a horse which the latter is employed to groom ;
or through the breaking down of a vehicle which he is employed
to drive ; or through the use of dangerous machinery which
the servant professes to understand, and which he has know-
1 Mulligan v. Curtis, 100 Mass. 512.
s According to some authorities, if a person becomes identified with a common
carrier, the latter's negligence is imputed to that person, because it is said that
•he becomes so identified in selecting the particular mode of conveyance when
he might have chosen some other. (Armstrong v. Company, L. R. 10 Ex. 47;
Thorogood v. Bryan, 8 Com. B. 115; Lockhardt v, Lichtenthaler, 46 Pa. 151;
Puterbaugh v. Beasor, 9 Ohio St. 484; Smith v. Smith, 2 Pick. 621.) But this
doctrine has been disapproved of in several cases, (The Milan, 1 Lush. Adm.
388; Hay v. Le Neve, 2 Shaw, Scotch Appeals, 396; Chapman v. Company, 19 N.
Y. 341; Webster v. Company, 38 K. Y. 260; Danville &c. v, Stewart, 2 Met. Ky.
119.) and the same conflict exists upon the subject of a parent or guardian of
a young child allowing the child to fall into danger: the former's negligenoe has
been imputed to the latter, and it Is placed upon the footing of contributory neg-
ligence on the part of the child so as to defeat recovery. ( Belief ontane &o. v.
Snyder, 18 Ohio St. 399; Glassey v, Hestonville, 57 Pa. 172; Smith v, O'Connor,
48 Pa. 218; Boland v. Company, 36 Mo. 484; Karr v. Parks. 40 CaL 188; Pitts-
burgh &c. V. Caldwell, 74 Pa. 421; Bronson v. Southbury, 37 Conn. 199; Bobin-
son V, Cone, 22 Vt. 213; Nor^h &c. v. Daly, 26 Conn. 591; Chicago &c. v. Greg-
ory, 58 lU. 226; Ihl v. Porty-second St. B. Co. 47 N. Y. 317.) But this doctrine
has likewise been frequently disapproved or denied. (Waite v. Company, EL B.
& E. 719; Lafayette &c. v. Huffman, 28 Ind. 287; Lynch v. Smith, 104 Mass. 52;
Hatfield v, Boper, 21 Wend. 615; Callahan v. Bean, 9 Allen, 401; Chicago v,
Starr, 42 111. 174; Brown v. Company, 58 Me. 384; Pittsburgh &c. v. Yining, 27
Ind. 513.)
§ 125 INJUBIES FBOM NEGLIGENCE. 251
inglj and voluntarily undertaken to use ; or for the dangers of
mounting scaffolds, or unfinished staircases, or landings, when
the servant can see the risk for himself.^ In accot'dance with
this doctrine, where the master's coach broke down through the
negligence of a coachmaker in making it, it was held that he had
no remedy for the injury, either from the master or the coach-
maker. Bolfe, B. observed : ^^ It is no doubt a hardship upon
the plaintiff to be without a remedy, but by that consideration
we ought not to be influenced." There would be no end of ac-
tions if we were to hold that a person having once done a piece
of work carelessly should, independently of honesty of purpose,
be fixed with liability in this way by reason of bad materials or
insufficient fastening.
§ 125. Injuries to Bervants — ^Exemption of master. —
A master is not responsible for the dangerous state of his
premises if those dangers are known to the servant, and the
latter has accepted the employment knowing the attendant
risks, and having an opportunity of guarding against them by
his own vigilance and care.^ Where plaintiff alleged he had
been hired by defendant to perform at the latter's theater, and
that there was a hole in the floor of the stage where the plaintiff
had to pass in performance of his duty as a performer, and that
it was the duty of the defendant to light the floor sufficiently so
as to prevent such accidents, it was held that no such duty was
cast upon defendant.^ If the servant wishes the premises kept
in any particular state with regard to lighting and fencing, he
must provide for it by express contract. And where a workman
is employed in the use of dangerous machinery, furnished by
the employer, and is or professes to be acquainted with the use
of the machinery, and the necessary care to guard against acci-
dent, and yet sustains injury from his own want of care and
caution in the use of it, he has no ground of action against his
i Patterson V. Wallace, 1 Macq. 751; Sidpp v. Company, 9 Ex. 223; Dynen v.
Leach, 26 Law J. Ex. 221; Assop v. Yates, 2 Hurl. & N. 770; 27 Law J. Ex. 166;
Griffiths t;. Gidlow, Ihid. 404; Coughtry v. Company, 56 N. Y. 124; Potts v.
Plunkett, 9 1. B. C. L. 290.
s McGlynn v. Brodie, 31 Cal. 37a
* Seymour t7. Maddox, 16 Q. B. 332; Bolch v. Smith, HnrL & K. 736; 31 Law J.
Q. B. 201; Potts v. Plunkett, 9 1. C. L. B. 290. But see By an v. Fowler, 24 K. Y.
410.
252 INJURIES FROM NEGLIGENCE. § 125
employer.^ As the employer does not undertake with his em-
ployees for the sufficiency and safety of the materials and imple-
ments f umrehed for the work, if an injury to a servant arises
from a defect or insufficiency in the machinery or implements
furnished to the servant by the master, knowledge of the defect
or insufficiency must be brought home to the master, or proof
given that his ignorance arose from his own negligence or want
of care, or in other words, that he either knew or ought to have
known of the defects.^ If a servant sustaining an injury
through defects in the machinery or conveniences furnished by
his employer, has the same means of knowledge or the same
knowledge of the defects as his employer, he cannot sustain an
action for the injury, but will be held to have voluntarily
assumed the risks.^ But if the master allows defective machin-
ery to be handled by his workmen, he having knowledge of the
defects and they being ignorant of them, the rule is otherwise.
The reason of this immunity in favor of t£e master has been
said to be that an opposite doctrine would subject employers to
unreasonable and often ruinous responsibilities, thereby embar-
rassing business, and encouraging the servant to omit the dili-
gence and caution which he should exercise on behalf of his
master to protect him against the misconduct or negligence of
others who serve him ; and which diligence and caution, while
they protect the master, are a much better security against
injuries to the servant by the negligence of others engaged
under the same master, than any recourse against the master for
damages could possibly afford. It makes it the special interest
of the servant to protect others since it is only in so doing that
he protects himself.^ And the servant assumes not only the
1 Dynen v. Leach, 26 Law J. Ex. 221; Baiton's HiU Goal Co. v. Reid, 3 Macq.
2M. See Watling v. Oastler, Law R. 6 Ex. 73.
* Keegran v. Company, 8 N. Y. 175; BuzzeU v. Company, 48 Me. 117; Wright t7.
Company, 25 N. Y. 562; Hey den v. Company, 29 Conn 548; Griffiths v. Godson,
3 Hen. & M. 213; McGlynn v. Brodle, 31 Cal. 376; Combs v. Company, 102 Maas.
572; Frazer v. Company, 38 Pa. 104; Mad River Company v. Barber, 5 Ohio St.
541; Priestly v. Fowler, 3 Mees & W. 1; Hutchinson v. Company, 5 Exch. 343.
* Cases just cited, and Williams v. Clough, 3 Hen. & M. 213; Kroy v. Com-
pany, 32 Iowa, 357; Ryan v. Fowler, 24 N. Y. 410; Wonder v. Company, 32 Md.
411; Noyes v. Smith, 28 Vt. 59; Patterson v. Wallace, 1 Macq. H. L. Cas. 748;
Walsh V. Company, 110 Mass. 23; Mellors v. Shaw, 1 Best & S. 437; Coombs v.
Company, 102 Mass. 572.
* Priestly v. Fowler, 3 Mees. & W. 1; Lawler v. Company, 62 Me. 463; S. C. 16
Am. B. 492; Hanrathy v. Company, 46 Md. 280; Illinois Co. v. Cox. 21 111. 20.
§ 125 INJUBIE8 FBOBi NEGLIGENCE. 258
ordinary risks and perils of the service, but also such others as
are apparent to ordinary observation.^ In a case in Connecticut
it appeared that the employee was acquainted with' the hazards
of the business in which he was engaged, and with the kind of
machinery made use of in carrying on the business, and the
court said : ^^ He must be held to have understood the ordinary
hazards attending his employment, and tlierefore to have volun-
tarily taken upon himself this hazard when he entered into the
defendant's service. Every manufacturer has a right to choose
the machinery to be used in his business, and to control that
business in the manner most agreeable to himself, provided he
does not thereby violate the law of the land. He may select
his appliances, and run his mill with old or new machinery, just
as he may ride in an old or new carriage, navigate an old or new
vessel, occupy an old or new house, as he pleases. The em-
ployee, having knowledge of the circumstances on entering his
service for the stipulated reward, cannot complain of the pecu-
liar taste and habits of his employer, nor sue him for damages
sustained in and resulting from that peculiar service."^ So,
an employer is not bound to change his machinery in order to
apply every new improvement or supposed improvement, and
an employee who consents to operate the machinery already
provided by the company,, knowing its defects, does so at his
own risk.^ And on the same principle of acquiescence, if an
employee knows that there is insufficient assistance rendered
him, and continues in the business without objection, the master
is not liable to him.^ A master has on similar grounds been ex-
empted from liability for exposing his servant to poisonous
exhalations.^ The qualifications or exceptions to the rule, as in
the cases of infants or persons of immature years, and persons
Ignorant of the dangers to which they are exposed, in the cases
•
1 Gibson v. Company, 63 N. Y. 449; S. C. 20 Am. B. 552; Baltimore Co. v. State,
41 Md. 268.
* Hajden v. Company, 29 Conn. 548; Williams v. Clough, 3 Hurl. & N. 258;
Dynan v. Leach, 26 Law J. Ex. 221; S. C. 40 Eng. L. & Eq. 491.
* Wonder v. Company, 32 Md. 411; Combs v. Company, 102 Mass. 572; S. C. 3
Am. B. 506.
^ Skipp V. Company, 9 Ex. 223.
< West V. Coiupany, 63 III. 545. See, also, Gibson v. Company, 63 K, Y. 449; S.
C. 20 Am. 552; St. Louis &c. v. Britz, 72 HI. 256; Fort Wayne &c. v. Giidersleeye,
33 Mich. 133; Belair v. Chicago &c. 43 Iowa, 662; Ladd v. Company, 119 Mass.
412; S. C. 20 Am. B. 552.
254 INJURIES FROM NEGLIGENCE. § 125
of servants commanded to go into exceptionally dangerous
localities, or to subject themselves to risks which they had no
reason to expect, or to consider as being within their employ-
ment, it is not our purpose to discuss. As in these instances the
master is generally held liable, it is not within the plan of this
work. The reader is referred to the various works on torts for
full discussions of the subject.^ And the same remark will
apply to cases where the master has not exercised ordinary care
in providing suitable and safe machinery ; or in making use of
that which he knows to be defective, without explaining the de-
fects to his servant ; or where he fails to use ordinary diligence
in discovering defects ; to cases where he employs other servants
who are wanting in requisite skill, care, or prudence ; or where
he continues such persons in his employ after their unfitness is
known to him, or where by the exercise of ordinary care it
might have been known, etc. It is to be observed, however^
that a master does not by any implied contract warrant the
safety of his machinery or his appliances, but he is liable only
for the want of ordinary care in their selection and use.^ This
is settled law.
A few more instances will illustrate the general rule. A per-
son was employed as a common laborer by the defendant, who
was a brewer, and was engaged in cleaning casks by a steam
apparatus, the use of which was explained to him. After he
had been so employed for some days, he was injured by the ex-
plosion of a cask, caused by the pressure of steam. There was
evidence that the apparatus was unsafe, because of the omission
of a certain valve or gauge ; but it was not proved that the de-
fendant knew or had reason to believe that it was dangerous in
its actual condition. The defendant was held not liable.^ So
where an employee in a foundry worked with or near an unsafe
piece of machinery, knowing it to be unsafe, he was held to
have assumed the risk of the employment.* "Where a laborer
1 See, especially, Cooley on Torts, pp. B53-n5G0.
< Indianapolis &c. v. Flanigan, 77 111. 365; Shanny v. Androsooj^gin Mill, 66
Me. 420; Ford v. Company, 110 Mass. 240; S. C. 14 Am. B. 598; Ladd v. Ck>m-
pany, 119 Mass. 412; S. C. 20 Am. R. 331; Fort Wayne &c. v. Gildersleeve, 33
Mich. 134, and cases cited.
* Loonan u. Brockway, 3 Rob. 74. '
<McGlynn v. Brodie, 31 Cal. 376.
§ 125 INJUBIES FBOM NEGLIGENCE. 256
was killed by the fall of a weight, which he was raising by
means of an engine to which he attached it by fastening on to
it a clip, and the clip had slipped off, it was held there was no
case to go to the jury, although it was shown that another and
safer mode of raising the weight was usual, and had been re-
jected by the defendant's orders.^ So where a servant volunta-
rily used an unsafe hook.^ In the case of railroad companies
there seems to be no implied warranty as between employer and
employees that the rolling-stock and fixtures of the road are
complete and safe ; but if the employer, with knowledge of a
defect, suffer the road to be run, the employee being ignorant
of the defect, or if, knowing it, the employer gives special direc-
tions as to operating, a compliance with which leads to an acci-
dent, he is liable, if such negligence be alleged and proved.^
The plaintiff should also allege that he used due care and dili-
gence in the inspection and use of the cars and machinery while
in his charge and under his direction. A conductor must use
ordinary skill and judgment, not only in the management of the
train, but also in the inspection of the machinery and cars ; and
if he is injured by the want of it, or by an insufficiency which
he might have known by reasonable diligence, or did know, the
company is not liable. And if such injury is caused by latent
defects, not discoverable by ordinary care either by the com-
pany or the conductor, the latter still has no remedy. In case
of an insufficiency of hands to run the road, if the conductor
ruQs the train without the proper number, when he might refuse
to run it, this amounts to a waiver, and he cannot claim dam-
ages from the company.^ An engineer upon a railroad, who
has received an injury resulting from a defect in the locomotive
of which he had charge, and from deficient fences, etc., must al-
lege and prove actual notice to the company of the defects and
deficiencies;^ and one having a contract with a company as em-
ployee, with full knowledge of the condition and management of
the road, cannot recover for injuries suffered in passing over it.^
1 Dynen v. Leach, 40 Eng. Law & Eq. 491.
a Griffiths v. Gidlow, 3 Hurl. & N. 648.
^Indianapolis &c. v. Love, 10 Ind. 554.
<Mad River &c. v. Barber, 6 Ohio, (N. S.) 641.
6 McMillan v. Saratoga &c. 20 Barb. 449.
«Mo8S t7. Johnson, 22 HI. 633.
256 INJURIES FROM NEGLIGENCE. § 126
A railroad corporation exercising reasonable care in provid-
ing and using suitable engines and tenders is not liable for an in-
jury occasioned by a defect therein to a workman employed by
them while being carried over their road without paying fare ;
so a carpenter employed by the day by a railroad company to
work on the road, and carried by the cars to the place of work,
without paying fare, cannot maintain an action against the com-
pany for injuries occasioned while being so carried, by a hidden
defect in an axle, the failure to discover which was occasioned
by the negligence of the servants of the company, whose duty
it was to keep in repair the cars, axles, etc.
§ 126. Injuries to senrants from their feUow-senrants.
In the absence of personal negligence on the part of the master,
he is not liable for injuries sustained by a servant by reason of
the negligence of a fellow-servant. In the absence of evidence
showing notice of the fellow-servant's incompetency, the plaintiff
cannot recover.^ This is on the theory that he who engages in
the employment of another for the performance of specified du-
ties and services for compensation, takes upon himself the nat-
ural and ordinary risks incident to the performance of such
services, and the negligence of fellow-servant« is one of those
risks.^ The term " fellow-servant " includes all who serve the
same master, work under the same control, derive authority and
compensation from the same source, and are engaged in the
same general business, though in different grades and depart-
ments of it.' An engineer and a switchman have been held
fellow-servants ; so have brakemen on different trains of the
same railroad ; so have a workman in a factory, and the foreman
and superintendent; and so with a carpenter employed by a
railroad to repair fences, and an engineer of the same company.^
1 Davis t). Company, 20 Mich. 105. Bee, also, Ford t;. Company, 110 Mass. 240.
Beaulieu v. Portland, 48 Me. 291; Morgan v. Vale &c. Law B. 1 Q. B. 149; Weger
V. Company, 55 Pa. 460; Davis v. Company, 20 Mich. 106; Bartonshill Coal Co. v
Reid, 3 Macq. 266, 900.
s Oilman v. Company, 10 Allen, 233; Priestly v. Fowler, 3 Mees & W. 1.
' Wonder v. Company, 32 Md. 411; Story on Agency, sec. 453d, note, Green's
ed.
* Bigelow on Torts, citing Farwell v. Company, 4 Met. 49; Hajres v. Company,
8 Cush. 270; Feltham v, England, Law B. 2 Q. B. 33; Albro v. Agawam, 6 Cash.
75; Beaver t;. Company, 14 Gray, 466. See Gillshannon t;. Company, 10 Cash.
§ 126 INJURIES FROM NEGLIGENCE. 267
Where fellow-servants are employed by the same master in a
common employment, the master is not liable for injuries to one
caused by the negligence of another, if the master has taken
due care not to expose the servant to unreasonable risks,^ and
has exercised reasonable care in the selection of proper servants.^
The principle is that when a servant undertakes a certain em-
ployment he undertakes all the known and ordinary risks of that
employment, and negligence on the part of fellow-servants is
supposed to be one of them, when the latter are* acting in dis-
charge of their duties.^ If both master and servant had notice
or equal knowledge or means of knowledge of the incompetency
of a fellow-servant, the servant is presumed to have accepted
the service with this additional risk.^ If the fellow-servant is
incompetent, and the master knew it and the other servant did
not, the rule changes, and the master is liable, whether the
incompetency existed at the time of hiring, or came afterwards,
if the master knew it ; but if competent when hired, knowledge
of subsequent incompetency must be brought home to the mas-
ter to render him liable.^
228; Lawler v. AndroscrB. Co. 62 Me. 463; Hilliard v. Richardson, 3 Gray, 349;
Weger v. Company, 55 Pa. 460; Morgan v. Company, L. R. 1 Q. B. 149; Colum-
bna &c. V, Arnold, 31 Ind. 174; LoaisTille &c. t;. Cavens, 9 Bosh, 559.
1 Chicago Company t;. Murphy, 53 HI. 396; Russell v. Company, 17 K. Y. 134;
Coon V, Company, 5 N. Y. 492; Lanning v. Company, 49 N. Y. 521; Murray v.
Company, 1 McMull. 385; Hutchinson v. Company, 5 Ex. 353; Hayes v. Company,
3 Cosh. 270; Wiggett v. Fox, 11 Ex. 837; 25 Law J. Ex. 188; Albro v. Company, 6
Cush. 75; Searle v. Lindsay, 11 Com. B. N. S. 429; 31 Law J. C. P. 106; King v.
Company, 9 Cush. 113; Hall v. Johnson, 34 Law J. Ex. 222; Gilshannon v. Com-
pany, 10 Cush. 228; Wright v. Company, 25 N. Y. 562; Sherman v. Company, 17
N. Y. 153; Farwell v. Company, 4 Met. 49; Leahey v. Company, 10 Mich. 199;
Brown v. Maxwell, 6 Hill, 592; Brickner v. Company, 49 K. Y. 672; Flike v. Com-
pany. 58 N. Y. 549.
3 Chapman v. Company, 55 K. Y. 579; Hofnagle v. Company, 55 N. Y. 606;
Tarrant v. Webb, 18 Com. B. 806; Wilson v. Merry, Law R. 1 Scotch & Diy. App.
326; Warner v. Company, 39 N. Y. 468; Cleghom v. Company, 56 N. Y. 44.
8 Morgan v. Company, 33 Law J. Q. B. 260; Law R. 1 Q. B. 149; Boldt v. Com-
pany, 18 N. Y. 432.
^Unless the master has given special directions, or has promised to amend
the defect, or held out some such inducement for the servant to remain. (Buz-
zell V. Company, 48 Me. 113; Laning v. Company, 49 N. Y. 521; Davis v. Com-
pany, 20 Mich. 106; Hayden v. Company. 29 Conn. 548; Indianapolis &c. v. Love,
10 Ind. 656; Thayer v. Company, 22 Ind. 29; Wright v. Company, 25 N. Y. 562;
Chicago &c. v. Jackson. 55 111. 492; Wonder v. Company, 32 Md. 411; Mad River
&c. V. Barber, 5 Ohio St. 562; Frazer v. Company, 38 Pa. 104.)
( Laning v. Company. 49 N. Y. 521 ; Illinois Central R. R. Co. v. Jewell, 46 111.
99; Davis v. Company. 20 Mich. 106; Chapman r. Company, 55 N. Y. 579.
D. A. I.— 17.
258 INJUBIES FROM NEGLIGENCE. § 126
A railway company has been held not responsible for an injury
to one of their own servants by a collision on their railway
caused by the negligence of another of their servants, where
they would undoubtedly have been liable, had the injured .per-
son been a mere passenger traveling for hire.^ The fellow-serv-
ants, however, must be engaged under the same general em-
ployer in order to exempt the master from liability.^ The prin-
ciple that when a master uses due diligence in the selection of
competent and- trusty servants, and furnishes them with suitable
means to perform their services, he is not liable to one fellow-
servant for an injury received by the latter through the care-
lessness of another, while both are engaged in the same em-
ployment, was laid down in the case of Farwell v. The Boston
& Worcester Railroad Corporation, 4 Met. 49. In that case a
railroad company employed a generally careful and trustworthy
switch-tender to tend the switches on their road. After he had
been for some lime in their service, they employed an engineer
to run a passenger train of cars on the road — the engineer
knowing the character and employment of the switch-tender.
The engineer, (the plaintiff) while in such employment, ran his
engine off at a switch, which had been left ixl a wrong condition
by the switch-tender, and was injured. The case was decided by
Shaw, C. J., in 1849, and he said that it was then a new ques-
tion in the court. He referred to the general liability of the
master for the acts of his servant when a stranger is injured
during the employment of the servant, under the maxim of
respondeat superior ; but he asserted that this could not apply
to the case of a servant bringing his action against his own em*
ployer to recover damages for an injury arising in the course of
that employment, where all such risks and perils as the employer
and servant respectively intend to assume and bear may be reg-
ulated by the express or implied contract between them, and
which, in contemplation of law, must be presumed to be thus
regulated. The basis of such an action, if it could be main-
1 McEnery v. Waterford, 8 1. B. G. L. 312; Tunney v. Company, LawB. 1 Com.
P. 291; BuBsell t7. Company, 17 N. Y. 194; Wegei t;. Company, 06 Pa. 460; Hando
V. Bailroad, L. B. 2 Q. B. 439n.
> Abraham v. Beynolds, 6 Hurl. & N. 149; Waller v. Company, 32 Law J. Ex.
206; liOvegTOve v. Company, 33 Law J. Com. P. 329; Connolly v. Davidson, 16
Minn. 619; Gillenwaier v. Company, 6 Ind. 340; Smith v. Company, 19 N. Y. 127.
§ 126 INJUBIES FROM NEGLIGENCE. 259
tained, he remarked, must be, in the absence of express contract,
some implied contract of indemnity, some implied promise arising
out of the relation of master and servant, and from the duty of
the master to be responsible to each person employed by him in
the conduct of every branch of business where two or more'
persons are employed, to pay all damage occasioned by the
negligence of every other person employed in the same service.
This would be in the nature of the liability of a common car-
rier. But the general rule, resulting from considerations as well
of justice as of policy, was declared to be that he who engages
in the employment of another for the performance of specified
duties and services for compensation, takes upon himself the
natural and ordinary risks and perils incident to the perform-
ance of such services, and in legal presumption the compensa-
tion is adjusted accordingly. ^^And we are not aware of any
principle which should except the perils arising from the care-
lessness and negligence of those who are in the same employ-
ment. These are perils which the servant is as likely to know
and against which he can as effectually guard as the master.
They are perils incident to the service, and which can be as
distinctly foreseen and provided for in the rate of compensation
as any others. To say that the master shall be responsible be-
cause the damage is caused by his agents, is assuming the very
point which remains to be proved. They are his agents to some
extent and for some purposes ; but whether he is responsible in
a particular case for their negligence is not decided by the single
fact that they are for some purposes his agents. It seems to
be now well settled, whatever might have beon thought formerly,
that underwriters cannot exeuee themselves from a loss by one
of the perils insured against, on the ground that the loss was
caused by the negligence or unskillfulness of the officers or
crew of the vessel, in the performance of their various duties as
navigators, although employed and paid by the owners, and, in
the navigation of the vessel, their agents." ^ ^\ I am aware," con-
tinued the Chief Justice, ^^ that the maritime law has its own
rules and analogies, and that we cannot always safely rely upon
them, in applying them to other branches of law. But the rule
in question seems to be a good authority for the point that per-
1 Gopeland v. Company, 2 Met. 440, and cases cited.
260 INJURIES FBOM NEGLIGENCE. § 126
sons are not to be responsible in all cases for the negligence of
those employed by them." Upon considerations of public policy,
also, the rule adopted was upheld. ^^ Where several persons are
employed in the conduct of one common enterprise or under-
faking, and the safety of each depends much on the care and
skill with which each shall perform his appropriate duty, each
is an observer of the conduct of the others, can give notice of
any misconduct, incapacity, or neglect of duty, and leave the
service of the common employer if the latter will not take such
precautions and employ such agents as the safety of the whole
party may require. By these means the safety of each will be
much more efEectually secured than could be done by a resort
. to the common employer for indemnity in case of loss by the
negligence of each other." Nor did it alter the case that the
person injured and the servant committing the injury were in
difEerent departments of duty, at places where neither could
control or influence the conduct of each other. ^' When the
object to be accomplished is one and the same, when the em-
ployers are the same, and the several persons employed derive
their authority and their compensation from the same source, it
would be extremely difficult to distinguish what constitutes one
department and what a distinct department of duty. It would
vary with the circumstances of every case. If it were made to
depend upon the nearness or distance of the persons from each
other, the question would immediately arise how near or how
distant must they be to be in the same or different departments?
In a blacksmith shop, persons working in the same building at
different fires may be quite independent of each other, though
only a few feet distant. In a ropewalk, several may be at work
on the same piece of cordage at the same time at many hund-
red feet distant from each other, and beyond the reach of sight
and voice, and yet acting together." The master is not exempt
from liability because the servant has better means of providing
for his safety when he is employed in immediate connection with
those from whose negligence he might suffer ; but because the
implied contract of the master does not extend to indemnify the
servant against the negligence of any one but himself, and he
is not liable in tort, as for the negligence of his servant, because
the person suffering does not stand toward him in the relation
§ 126 INJUBIES FBOM NEGLIGENCE. 261
of a stranger ; but is one whose rights are regulated by contract,
expressed or implied. As the exemption of the master, there-
fore, from liability for the negligence of a fellow-servant, does
not depend exclusirely upon the consideration that the servant
has better means to provide for his own safety, but upon other
grounds, the separation of the employment into different depart-
ments cannot create that liability when it does not arise from
express or implied contract, or from a responsibility created by
law to third persons and strangers for the negligence of a ser-
vant.^
These general principles may be considered settled law,^ al-
ways provided that the master himself is not guilty of negli-
gence in employing unfit persons or in retaining unfit servants
after notice of their unfitness.^ Of course, in the absence of
contributory negligence, the master is liable for his own negli-
gence. So, also, it is to be understood that the employer is lia-
ble, in the absence of contributory negligence, for the use of
improper inanimate instrumentalities, knowing them to be im-
proper, whereby injury accrues to his servants, as defective en-
gines, or engines out of repair. In such cases, agents of the
master have been charged with the master^s duty, and have not
been regarded in the light of fellow-servants.^ It has also been
decided, in Massachusetts, that the rule as to the master's exemp-
^ FarweU v. Boston & Worcester Railroad Corporation, 4 Met. 49; Priestly o.
Fowler, 3 Mees. & W. 1 ; Murray v. Company, 1 McMuU. £q. 385 ; Wonder v.
Company, 32 Md. 411; Columbus Company v. Arnold, 31 Ind. 174; Warner v.
Company, 30 N. Y. 470; Louisville Company v. Cavens, 9 Bush, 559; Chicago v.
Dermody, 61 ni. 431; Hard o, Vermont &c. 32 Vt. 480; Howells v. Landore Steel
Co. Law R. 10 Q. B. 62; Smith v. Steele, Law R. 10 Q. B. 126; Feltham v. Eng-
land, Law R. 2 Q. B. 33; Wiggett r. Fox, 11 Ex. 832; Svenson v. Company, 57
N. Y. 108; Brown v. Company, 3 Hurl. & N. 511; Searle v. Lindsay, 11 Com. B.
N. S. 429; Illinois Company v. Cox, 21 111. 20; Hayden v. Company, 29 Conn.
5i8; Sherman v. Company, 17 N. Y. 153; Caldwell r. Brown, 53 Pa. 453; Sulliyan
V, Company, 11 Iowa, 421.
SBeaulien r. Portland, 48 Me. 291; Ford v. Company, 110 Mass. 240; Weger t\
Company, 55 Pa. 460; Bartonshill Coal Co. r. Reid, 3 Macq. 266; BartonshiU Coal
Co. V, Maguire, 3 Macq. 300; Davis v. Company, 20 Mich. 105; Abraham v, Rey-
nolds, 5 HurL & N. 143 ; Hutchinson v. Company, 5 Ex. 343 ; Le Clair v. Com-
pany, 20 Minn. 90; Harper v. Company, 47 Mo. 667; Gallagher v. Pifer, 16 Com.
B. N. S. 669 ; Morgan v. Company, Law R. 1 Q. B. 149; Oilman v. Company, 10
Allen, 233; Chicago &c. Company v. Murphy, 53 111. 336.
• Cases cited aupra, and Chapman v. Company, 55 N. Y. 529; Lawler v. Com-
pany, 62 Me. 463; Toledo &c. Co. v, Conray, 61 HI. 162.
4 Ford V. Fitchburg R. R. Co. 110 Mass. 240.
262 INJURIES FROM NE6LI6EKCB. § 126
tion in the case of fellow-servants does not apply to a case of
damages resulting to one fellow-servant by reason of injnries
suffered by the latter's wife from the negligence of another fel-
low-servant.^ The application of the general rule has also been
doubted, where the servant causing the injury occupies a higher
position than the one injured.^
But it is also held that defects in machinery must have been
the cause of injury in order to charge the master ; and if it was
occasioned, notwithstanding the defects, by the negligence of a
fellow-servant, the master is not responsible.' If the master
does not in any way interfere, but employs a competent fore-
man to superintend the work and select the materials, and the
foreman selects unsound or unsafe materials, or knows that those
he has selected have become unsafe, and they cause injury to
the workmen acting under the foreman's directions, the master
is not responsible, as the fault is not with him, but with the
foreman, or fellow-workman.*
Instances. — An employee of a railroad company was em-
ployed by the month to render service generally on the road in
the capacity of baggage-master, conductor of passenger-trains
and gravel-trains at such times and places along the road as
directed, and being ordered to go the next day to a certfun place,
and take charge of a gravel-train, took passage on the train, but
passed by that place to another place, and on the morning of
the next day returned by the same train towards the place to
which he was directed to go to take charge of the gravel-train ;
but before arriving, by the carelessness of the servants oper-
ating the passenger-train, he was thrown from the car and in-
jured. It was held that although he had no duties to perform
on the passenger-train, his relation of fellow-servant to the em-
1 Gannon v. Company, 112 Mass. 234.
> Little Miami R. R. Co. v. Stevens, 20 Ohio, 415; Cleveland R. R. Co. v. Keary,
3 Ohio, 201. And so where the injury was occasioned by the negligence of a
servant who was not possessed of ordinary skill or capacity in the business in-
trusted to him. (Harper v. Company, 47 Mo. 567.)
* Hayes V. Company, 3 Cnsh. 270; Warner v. Company, 39 Cush. 468.
4 Wigmore v. Jay, 5 Ex. 358; Feltham v. England, I^aw R. 2 Q. B. 33; Mercer
V. Jackson, 64 111. 397; Forsyth v. Hooper, 11 Allen, 419; Williams v. Clough, 3
Hurl. & N. 258; 27 Law J. Ex. 325; Gallagher v. Piper, 33 Law J. Com. P. 329;
Hunt V. Company, 51 Pa. 475; Ormond v. Holland, EL B. & E. 105; Searle v.
Lindsay, 11 Com. B. N. S. 429; 31 Law J. Com. P. 106; Farwell v. Company, 3
Macq. 316.
§ 126 INJUBIES FROM NEGLIGENCE. 263
ployees operating the train did not entitle him to the extra-
ordinary care due to a common passenger.^ An engine-driver
on defendant's railroad was killed by the explosion of the loco-
motive, which occurred in consequence of the neglect of defend-
ant's master-mechanic to keep the locomotive in repair, it being
his duty to superintend and direct the repairs of all the locomo-
tives. The directors furnished their road in the first instance
with suitable machinery, and faithful and competent employees,
and they were ignorant of any defect in the locomotive. It
was held the defendant was not liable.^ A plaintiff was em-
ployed as a trackman to follow passenger-trains over a certain
portion of defendant's road, to keep it in order, and report de-
fects; and while engaged in this duty in the evening he was
run over and injured by a train of defendant's cars without
lights, and not usually passing at that hour. The company
was held not liable, the negligence being that of the managers
of the train.^ So, where an action was brought against a
railway company by an administratrix, for damages occasioned
by the negligence of the company, by their servants, in moving
trucks against another truck, which the' deceased was assisting
in turning, and by such negligence causing his death, it appeared
that he was voluntarily assisting the other servants — that they
were persons of ordinary skill, and competent to move trucks
safely, and plaintiff could not recover, as the negligence was
unauthorized by and without the knowledge of the company.^
Where a laborer on a gravel train was riding in a gravel car
from his boarding place to the place of his work, and was in-
jured by the carelessness of the engineer, it was held he could
not recover from the company.^ An "underlooker" in a mine,
whose duty it was to examine the roof and prop it up if danger-
ous, was held to be a fellow -laborer with ,a workman in the
mine, and the latter could not maintain an action against the
owner for an injury occasioned by the neglect of the ^^ under-
•
1 Manville v. Cleveland &c. 11 Ohio N. S. 417.
2 Hard v. Vermont &c. 32 Vt. 473.
s Coon V. The Syracuse &c. 1 Seld. 492.
*Degg V. Midland Sec. 3 Jur. N. S. 396.
<Byan v. Cumberland &c. 23 Pa. 384; Gillshannon t;. Stony Brook &c. 10 Cush.
228; Russell v. Hudson &c. 17 N. Y. 134. But see Louisville v. Collins, 2 Duv.
114.
264 INJURIES FBOM NEGLIGENCE. § 126
looker" to prop up the roof, the owner not having had any
knowledge of the dangerous state of the mine.^ Where an em-
ployee, ^entering the building of his employer in the ordinary
course of business, fell through an open hatchway and waa
killed, it appeared that whenever the hatchway was rightfully
opened it was by the order of defendant or a particular agent,
and that then the agent always stood by it when open, to guard
against accidents. On the particular occasion in question, it
was opened without the permission or knowledge of the particu-
lar agent t)r of the employer, the defendant, by the unauthorized
act of a fellow-servant of the deceased, and the defendant was
held not liable.^ Where two servants were employed upon the
same work, and one of them, without authority from his em-
ployer, directed the other to use a machine for a dangerous and
improper purpose, one for which it was not provided nor in-
tended, and the one complying suffered an injury, the employer
escaped liability.^ In general, whenever the fellow-servant is a
person of ordinary skill and care in his particular employment,
if he is reasonably fit and competent in that service, and the
master uses reasonable care in his selection, and furnishes him
suitable means to perform the service, and has no notice of
any subsequent incompetency, the fellow-servant injured by
the acts of such other cannot recover against the master.^
The brakeman on a railroad train, the conductor and engi-
neer of the same train, the mechanics in the repair shop, the in-
spector of the machinery and rolling stock, the inspector of the
rails, laborers on the track, and the superintendent of the move-
ment of the trains, a sub-contractor and his servants under a
particular contract, may all be considered fellow-workmen within
the rule.^ But it seems to be not sufficient that the employees
1 Hall v. Johnson, 3 Harl. & G. 689.
3 Karl v. Maillard, 3 Bosw. 691.
<F6lch V. Allen, 98 Mass. 672.
^McDermott v. Pacific &c. 30 Mo. 116; Perry v. Ricketts, 36 111. 234; Caldwell
V. Brown, 63 Pa. 463; Chicago v. Harney, 28 Ind. 28; Michigan &c. v. Leahey, 10
Mich. 193; Sullivan v. Mississippi &c. 11 Iowa, 421.
s Cases cited mpray and Wiggett v. Fox, 11 Ex. 832; 26 Law J. Ex. 193; Hayes
V. Company, 3 Cush. 270; Sherman v. Company, 17 N. Y. 163; Morgan v. Com-
pany, 33 Law J. Q. B. 260; Law B. 1 Q. B. 149; Ryan v. Company, 23 Pa. 382;
Russell t7. Company, 17 N. Y. 134. But see Gillenwaier v. Company, 6 Ind. 340;
Bartonshill Coal Co. v. Reid, 3 Macq. 294; Hunt v. Company, 67 Pa. 476; Burke
§ 127 INJURIES FROM NEGLIGENCE. 265
are temporarily subject to the same superintendent if they are
not servants of the same general master.^ Volunteers offering
assistance to servants engaged in a difficult or dangerous work
cannot, if injured, recover damages from the employer for the
negligence of one of the servants.^
§ 127. Negligence of servantB.— Whatever a servant does
to give effect to the commands of his master may be treated as
the act of the master.^ But if a servant without the knowledge
of the master wrongfully takes his master's property, As his car-
riage, or coach, or horse, for his own purposes, and drives against
another person's carriage, the master is not responsible — and
this is because for the time being the servant has a special
property in the chattel, and for the particular wrongful purpose
makes it his own.^ The test is not whether the servant was
actually following instructions in doing the particular act, but
whether he was on his master's business when the event hap-
pened. If he was, then the master is liable ; but if the servant
is on business or on a frolic of his own, the master is not liable.^
The master is not liable either, if the act of the servant, instead
of being done in the general course of his master's business, is
deliberately malicious or willful, as throwing an article directly
and purposely at a foot-passenger, or upon him, unless it be
'done with the express or implied authority of the master.^ If a
master should employ a servant to remove the roof from his
house and direct him to throw the materials upon his lot, where
no one would be endangered, and the servant, disregarding the
instruction, should carelessly throw them into the street, causing
V, Company, 34 Conn. 474; Forsythe v. Hooper, 11 Allen, 419; Murry r. Cnrrie,
L. R. 6 Com. P. 24.
1 Warbnrton v. Company, Law R. 2 Ex. 30. See Connolly v. Davidson, 15
Minn. 519; Ashworth v. Stanwix, 30 Law J. Q. B. 183.
s Flower v. Company, 69 Pa. 210; New Orleans v. Harrison, 48 Miss. 112; Degg
V. Company, 1 Hurl. & N. 773; 26 Law J. Ex. 173; Potter v. Falkner, 1 Best &
Smith, 800: 31 Law J. Q. B. 30.
* Hutchinson v. Railway, 6 £xch. 360.
^McManus t7. Crickett, 1 East, 106; Sleath t7. Wilson, 9 Car. & P. 607; Lamb v.
Palk, 9 Car. & P. 631. See Weed v. Panama B. R. Co. 17 K. Y. 362.
•Joel 17. Morrison, C Car. & P. 603; Cosgrove r. Ogden, 49 N. Y. 256; Wright v.
Wilson. 19 Wend. 343.
•Mali V. Lord, 39 N. Y. 381; Vanderbilt v. Company, 2 N. Y. 479; Philadelphia
Company v. Derby, 14 How. 468.
266 INJURIES FBOH NEGLIGENCE. § 127
an injury to a passenger, the master would be liable, although
the act was done in violation of his instructions. But should
the servant, for some purpose of his own, intentionally throw the
materials upon a passenger, the master would not be responsible,
because the act would not be done in the course of his business.^
As the liability of the master for intentional injuries inflicted
by his servant can only extend to those arising within the real
or apparent course of the mastei^'s business, if the servant out-
side of that employment commits an injury, undirected by his
master, the latter is not liable. As where the servant of the de-
fendant, after a person had been put ofE a railroad train, kicked
him in the face when he attempted to get on again, it was held
to be the tort of the servant only ; ^ and the master was held
not liable where the servant willfully drove over another person
and injured him.^ And so, where a conductor purposely in-
creased his speed to run into stock on the track ; ^ and where
the master of a vessel purposely ran into and injured another.^
In the language of judicial authority, ^^ if the servant, wholly
for a purpose of his own, disregarding the object for which he
is employed, and not intending by his act; to execute it, does an
injury to another not within the scope of his employment, the
master is not liable," ^ or as stated in another case, where a
servant quits sight of the object for which he was employed,
and without having in view his master's orders, pursues that
which his own malice suggests, the master is not liable for such
acts.^ Although the motive of the act, whether it was done in
the interest of the master or to gratify the personal malice or
the private interest of the servant, is often important, it is not
altogether the test. Another essential thing to be taken into
1 Cosgroye v. Ogden, 49 K. Y. 255. See, also, Mitchell v. Crassweller, 13 Com.
B. 237; Storey v. Ashton, Law B. 4 Q. B. 476; 38 Law J. Q. B. 223; Bard v. Yohn,
26 Pa. 482.
3 Crocker t;. Company, 24 Conn. 249; Evansville, &c. v. Baum, 26 Ind. 70.
« Wright V. WUcox, 19 Wend. 343.
4 Illinois &c. V. Downey, 18 111. 259.
s Bichmond &c. v. Vanderbilt, 2 N. Y. 479; S. C. 1 Hill, 480. But see Chicago
&o, V. Dickson, 63 lU. 151; S. C. 14 Am. B. 114; Toledo &c. v. Harmon, 47 111. 296;
Howe V. Newmach, 12 Allen, 49.
e Howe v, Newmarch, 12 Allen, 49. See Mali v. Lord, 39 N. T. 381; Fraser o.
Freeman, 43 N. Y. 566; S. C. 3 Am. B. 740; Evansville &c. v. Baum, 26 Ind. 70;
Little Miami Co. v. Wetmore, 19 Ohio N. S. 110; S. C. 2 Am. B. 373.
7 McManus v. Crickett, 1 East, 106.
>
§ 127 INJURIES FROM NEGLIGENCE. 267
•
consideration is whether the act was something contemplated
by the employment, und something which, if done lawfully, he
might do in his employer's name.
Where a servant, in using the team of his master with the
latter's consent, bat for his own purposes and benefit, the master
not being present, nor giving any directions, by his negligence
injures a third party, the master is not responsible.^ So, where
a servant is directed to drive cattle out of a field, and drives
them elsewhere than out of the field.^ And it has been held
that if one employs another to do an act which may be done in
a lawful manner, and the latter unnecessarily commits a public
nuisance, whereby injury results to a third person, the employer
is not liable.^ And it is also said that a master is not responsi-
ble for the act of a servant employed on the express recommen-
dation of the plaintiff.^ An owner of land who employs a con-
tractor for a specific price to alter and repair buildings thereon,
and to famish all the materials for this purpose, is not liable for
the negligence of the contractor's subordinates employed by the
contractor.^ In order to avoid such liability these conditions
should exist. The acts which are charged as negligence must
not be done by any specific direction, order, or request of the
owner. The ordinary relation of master and servant must not
exist between the owcfer and the negligent agent. The acts
done must not amount to a nuisance suffered by the owner upon
hb land to another's injury. In a case in Massachusetts, where
an owner was sought to be held liable because he employed a
carpenter for a certain price to alter and repair a building, and
to furnish all the materials fo( this purpose, and damages
resulted to a third person from some boards being deposited in
the highway in front of the land by a teamster in the employ
of the carpenter, and not of the owner particularly, although
the boards were intended to be used in the alteration and repair,
Thomas, J., delivering the opinion of the court, and after
1 Bard v, Yohn, 25 Pa. 482; Mitchell v. GressweUer, 13 Com. B. 2S7.
2 Oxford V. Peter, 28 HI, 434.
» Peachey v. Rowland, 13 Com. B. 182.
< Donham v. Wild, IQ.Pick. 620.
'HiUiard v. Bichardson, 3 Gray, 349; Knifi^ht t;. Fox. 5 Ex. 721; DeForrest v.
Wright, 2 Mich. 368; Beedie & Hobbit v. Bailway,^ Ex. 244; Overton v. Free-
man, 11 Com. B. 867. See, contra, Bush t;. Steinman, 1 Bos. & P. 404; Wiswell u.
Brinson, 10 Ired. 554.
268 INJURIES FBOM NEGLIGENCE. § 127
reviewing numerous authorities, concluded as follows : ^' Upon
what principle can the defendant be heU responsible for this
injury? He did not himself do the act which caused the
injury to the plaintiff. It was not done by one acting
by his command or request. It was not done by one whom
he had the right to command, over whose conduct he had
the efficient control, whose operations he might direct, whose
negligence he might restrain. It was not an, act done for
the benefit of the defendant, and from the doing of which an
implied obligation for compensation would arise. It was not an
act done in the occupation of land by the defendant, or upon
land to which, upon the facts, he had any title. To say that a
man shall be liable for injuries resulting from acts done near to
his land, is to establish a rule as uncertain and indefinite as it is
manifestly unjust. It is to make him liable for that which he
cannot forbid, prevent, or remove. The case cannot stand on
the relation of master and servant. It cannot stand upon the
ground of nuisance erected by the owner of land or by his
license, to the injury of another. It cannot stand upon the
ground of an act done in the execution of a work under the
public authority, as the construction of a railroad or canal, and
from the responsibility for the careful and just execution of
which public policy will not permit the corporation to escape
by delegating their power to others." ^ The general principles
announced in this decision have been approved in numerous
cases, and those holding the contrary doctrine have generally
been disapproved.^ Where corporations have been held liable
for the negligence of the servients of their contractors, the cases
have not generally rested on the relation of master and servant;
but upon the duty which existed to see that buildings, works,
etc., were kept in proper repair, and which was totally inde-
pendent of the means by which obstructions or defects were
occasioned.^ Where, however, an act contracted to be done is
^ HilUardo. Kichardson, 3 Gray, 349, denying the aathority and the correct-
ness of Bush V. Steinman, 1 Bos. & P. 4(H.
s Cuff V. Newark & N. Y. R. R. Co. 6 Vroom, 17; Fenton v. Company, 8 Ad. &
E. 835; Rapson v. Cubitt, 9 Mees. & W. 710; Knight v. Fox, 5 £x. 721; Burgess
V, Gray, 1 Com. B. 578; Overton v. Freeman, 11 Com. B. 867; Randleson v, Mur-
ray, 8 Ad. & E. 109; Sadler v. Henlock, 4 £1. & B. 570; Steel v. Company, 16 Com.
B. 650; Brown v. Company, 3 Hurl. & C. 511; Kelly v. New York, 11 N. Y. 433.
< Storrs V. Utica, 17 K. Y. 1(^; Smith v. London Company, Law R. 3 Com. P.
326; Chicago v. Robbins, 2 Black. 418; Holmes v. Company, Law R. 4 Ex. 254.
§ 128 INJT7BIES FROM NEGLIGENCE. 269
•
Toid ctb initio^ the owner may be liable.^ It is to be observed,
also, that a servant who merely hires fellow-servants to perform
his master's work is not liable for the negligence of those he
hires. In such case, either the latter are liable, or the owner for
whom the work was done — sometimes both parties jointly.^
In discussing the subject of the non-liability of the master
for the acts of fellow-servants toward each other, which have
resulted in injury, and those cases where the master is not liable
for the negligence or acts of his servant toward third parties,
while in many instances there may be a technical remedy, or
rather right of action against the servant himself, still it is so sel*
dom that the servant is sought to be held, or that he is presuma-
bly able to respond in damages of any consequence, that I have
thought it not improper to treat those cases where the master is
not held responsible, as practically cases of damnum absque in-
juria^ and have so considered them.
§ 128. Negligent management of chattels, etc. — ^Inevi-
table accident. — ^If an injury has resulted from circumstances
over which a defendant has had absolutely no control, he is not
usually liable, though he may be in most cases of mere accident
on his own part.® So, where defendant's horse, being fright-
ened by the sudden noise of a butcher's cart, which was driven
furiously along the street, became ungovernable, and plunged
the shaft of a gig into the breast of plaintiff's horse, the plaint-
iff could not recover of the owner of the ungovernable horse ; *
and where a horse naturally vicious, but not known to be so by
its rider, became unmanageable, and ran upon the foot pave-
ment and knocked down and killed the plaintiff's husband, she
was held not entitled to recover from the rider.^ Such was also
1 EUis V. Sheffield Gas Go. 2 El. & B. 767.
* Stone V. Cartwright, 6 T. K. 411 ; Wilson v. Peto, 6 Moore, 49. See Fenton v.
Company, 8 Ad. &; E. 835; Dalyel v. Tyrer, £1. B. & E. 899; KimbaU r. Cush-
man, 103 Mass. 194.
• Vincent v. Stinehour, 7 Vt. 62; liOame v. Bray, .3 East, 699; Hodges v. West-
beyer» 6 Mon. 337; Weaver v. Ward, Hob. 134; Dickenson v. Watson, 2 Jones,
206; Castle v. Duryee, 2 Keyes, 169; Underwood v. Hewson, 1 Str. 696; Dixon
V. Bell, 6 Moore & S. 198; Farrant r. Barnes, 11 Com. B. N. S. 663; 31 Law J.
Com. P. 137; Taylor v. Rainbow, 2 Hen. & M. 423.
« Wakeman v. Rolbinson, 1 Bing. 213; 8 Moore, 63.
6 Hammack v. White, 11 Com. B. N. S. 688; 31 Law J. Com. P. 129.
270 INJUBIES FKOM NEGUGENCE. § 129
the ruling where a horse was frightened by a clap of thunder,
and ran over the plaintiff, who was incautiously standing with
others in the carriage-road.^ If a horse, not known by the
rider to be of a vicious disposition, kicks out without provo-
cation and injures a by-stander, the rider will not be respons-
ible ; though he might be if the injury was caused by a dan-
gerous or incautious use of the spur.^ It may therefore be
stated as a general proposition, that if a man is entirely de-
prived of the command of his will and actions, and occasions
an injury, he is not accountable for the injury which he in-
voluntarily occasions ; as if, from motives of self-preservation,
he should jump out of the window of a house on fire, and
fall against another ; or, in endeavoring to save another from
inevitable accident, he should run against some one ; or if he is
deprived of all control over his will by idiocy or permanent
madness, and should injure another, it is considered as an invol-
untary trespass for which no recovery can be had. In the case
of lunacy it has been held that a man is answerable in trespass
for an injury which . he occasions to another ; but this has been
considered to be on the strength of authority alone. If the act
is voluntary, though accidental,, an action may lie. This dis-
tinction runs through most of the cases. If a man turns around,
and thus doing accidentally knocks down another whom he does
not see, he is liable ; but if one forcibly takes another's hand
and strikes a third with it, the one acting involuntarily is not
liable.^
§ 129. Snccessive negligence of two or more parties. —
An instance of this sort of negligence is presented in the follow-
ing case : Suppose, through the carelessness of a railroad com-
pany, sparks should escape from its locomotive and fall on dry
rubbish, carelessly left by another party scattered over his prem-
ises near the track, and, fanned by the wind, the sparks ignite
the rubbish, and this fire is driven by the wind to the buildings
of another party, which are thereby consumed. In such a case
^ GibboiiB V. Pepper, 1 Ld. Baym. 3S.
3 North V. Smith, 10 Com. 6. K. a 070.
> Vincent v, Stinehour, 7 Vt. 62. Also, see Harvey v. Dnnlop, HiU & D. 103;
Underwood v. Hewson, 1 Strange, 596; Goodman v, Taylor, Gar. & P. 410;
Leame v. Bray, 3 East, 593; Bro¥m v. Kendall, 6 Gush. 292.
§129 INJURIES FBOM NE6LIOENCE. 271
it has been considered that the company was only one of the oc-
casions of the loss, and not the cause ; and that where between
sach an occurrence and the loss the negligence of another party
intervenes, without which last negligence the loss would not
have occurred, the former party is not liable. Wharton, in his
work on negligence, remarks : ^^ Supposing that it had not been
for the intervention of a responsible third party, the defendant's
negligence would have produced no damage to the plaintiff, is
the defendant liable to the plaintiff? This question must be
answered in the negative, for the general reason that causal con-
nection between negligence and damage is broken by the inter-
position of independent, responsible human action. I am negli-
gent on a particular subject-matter, and another person, moving
independently, comes in, and either negligently or maliciously
so acts as to make my negligence injurious to a third person.
If so, the person so intervening acts as a non-conductor, and
insulates my negligence, so that 1 cannot be sited for the mis-
chief which the person so intervening directly produces. He is
the one who is liable to the person injured. I may be liable to
him for my negligence in getting him into difficulty ; but I am
not liable to others for the negligence which he alone was the
cause of making operative." ^ On the other hand it is said that
but for the negligence of the first person that of the second
would not have resulted in any loss ; and it is asked why should
the latter be required to pay damages occasioned by his negli-
gence, when no loss would have resulted but for the active
negligence of the former ? Would it not, it is asked, be more
consonant with principles of justice and equity to require the
parties equally culpable to contribute equally in satisfaction of
the loss?^ Some such limited doctrine has at times been recog-
nized in cases of comparative and contributory negligence;
as where the negligence of the plaintiff has been slight and
the defendant's gross, the plaintiff has been allowed to re-
cover.
1 Whart. on Neg. sees. 134, et seq,
> Kellogg V. Chicago &c. Company, 26 Wis. 223; Field on Damages, sec. 666.
See, also, the doctrine in th^ admiralty courts— Vaux v. Sheffer, 8 Moore P. C. 0.
75; The Milan, 31 Law J. Adm. 105.
272 INJURIES FBOM NEGLIGENCE. §§ 180-81
§ 130. Contemporaneous negligence. — Where the negli-
gence of two persons is contemporaneous, and the fault of each
operates directly to cause the injury, the rule is said to be that
the plaintiff cannot i*ecover if by due care on his part he might
have avoided the consequences of the negligence of the defend-
ant. Neither party in cases of collision can recover, when the
action arises from their united carelessness.^ The question in
most cases seems to be, whether there was negligence or fault
on the part of the plaintiff contributing directly as a proper or
proximate cause to the occurrence from which the injury arose.
If there was, the plaintiff cannot recover .^ Sometimes, as in
admiralty law, a doctrine of what is called comparative negli-
gence is adopted. The defendant is not liable if the plaintiff 's
negligence exceeded his own.^
§ 131. Intervening negligence. — There may intervene be-
tween the wrongful act of the defendant, as the damage sus-
tained by the plaintiff, an act of a third person or agency, which
directly produced the damage. In such case, and if the misfor-
tune would not have certainly followed without it, the defendant
will not be liable. For example, the defendant sells gunpowder
to the plaintiff, a boy eight years old, who takes it home and
puts it into a cupboard, where it lies for more than a week with
the knowledge of the child's parents. The boy's mother then
gives him some of the powder, which he fires off with her knowl-
edge. This is done a second time, when the child is injured by
the explosion. The defendant is not liable, on the ground that
the act of selling the powder to the boy was not the proper
cause of the injury. There were intervening acts and some
intervening negligence on the part of the parents.^ So when
anything arises out of the usual and natural course of events,
or when any unusual occurrence happens which converts an
innocent act of negligence into an act of damage. If one
should build a small fire in the street, though contrary to law,
and the day be mild, and no storm threatening, and a whirlwind
^Tnff V. Warman, 6 Com. B. N. 6. 573; Murphy v. Deane, 101 Mass. 455.
2 Ibid.
s Chicago &c. v. Van Patten, 64 III. 510; Illinois &c. r. Baches, 59 III. 379;
0*Keefe v. Chicago &c. 32 Iowa, 467.
* Carter v» Towne, 103 Mass. 507.
§ 132 INJUBIES FROM NEGLIGENCE. 273
should suddenly arise and scatter the fire, to the damage of an-
other, the defendant might not be liable.^ Where an alleged
breach of duty is involved in a breach of contract, some courts
both in England and America deny the liability of the defend-
ant where there are intervening acts of others. They deny the
liability of the defendant to any one but the person with whom
the contract was made. But the authorities are not uniform.
§ 132. Mutual negligence. — In cases of mutual negligence,
and where the negligence of each party was a proximate cause
of the injury, no action can be maintained. In such cases there
cannot usually be an apportionment of damages. And where
the negligence of the plaintiff is proximate and that of the de-
fendant is remote or consists of some other matter than what
occurred at the time of the injury, no action can be maintained.^
Illustrations. — Where a person crosses a railroad track with-
out taking due care to ascertain whether there is a train ap-
proaching, and is run over by a train coming upon him una-
wares, he is chargeable with contributory negligence, and dam-
ages are not recoverable for* injuries sustained thereby.* The
passenger car is usually the proper place for passengers on a
nulroad train, and if a passenger is injured by reason of his
being in or on some other car, not designed for the use of passen-
gers, and where there is greater danger and hazard than in the
passenger car, it ordinarily constitutes contributory negligence.
But where a passenger is injured by a collision while riding in
a baggage car, if he is there by invitation or direction of the
conductor, or if he has usually been permitted to ride there for
any reason, that is sufficient to relieve him of the charge of con-
tributory negligence.* Where the approach to a railroad was
dangerous, because the track could not be seen beyond the point
of crossing, and the plaintiff's intestate did not stop to listen
before he attempted to cross the track, and was killed in at-
1 See Insurance Co. v. Tweed, 7 Wall. 44.
' Trow V, Company, 24 Vt. 487; Slierman r. Company, 24 Iowa, 515; Callahan
V. Wame, 40Mo. 131: Tacker v. Cbamplin, 2 Car. & K. 790; Galena &c. Co. v.
Vanilergrift, 34 Mo. 55; Redfield on Ratlwaya, 330; Field on Damages, sec. 171,
and cases cited.
> Morris B. B. Co. v. Haalan, 33 N. J. L. 147; Langlioff o.' Milwaukee R. Co.
23 Wis. 43.
^ O'Donnell v. Company, 59 Pa. 239.
D. A. I.— 18.
274 INJUBIES FBOM NEGLIGENCE. § 132
tempting to do so, by a passenger locomotive, the deceased was
held guilty of negligence per se^ and the question of contribu-
tory negligence was held improper to be submitted to the jury.^
Where a child nine years old jumped upon a properly con-
structed draw, from a railroad bridge, while the draw was being
lawfully closed, and was thereby injured, it was held to be so
wanting in ordinary care as to prevent a recovery.^ If a foot
passenger crosses a street where the moving vehicles are numer-
ous, and a collision with them likely to occur, and to produce
serious injury, and crosses without looking in both directions to
ascertain whether they are approaching, and if so, their rate of
speed and distance, he is chargeable with negligence per se^
which will defeat a recovery for any injury to which said want
of care contributed.^ And where a brakeman employed on a
freight train was aware that some bridges under which the train
passed were too low to admit of his standing upright on the top
of the car, and he had been cautioned in regard to them, and
notwithstanding this he attempted to pass under a bridge while
seated upon the top of a brake, which position elevated him
higher than he would have been if standing upon his feet, and
he was thereby killed, the company was considered not liable.^
Where a fire which caught from a locomotive spread from the
railroad track of the defendant, and, fed by prairie grass, reached
the hay-stacks of the plaintifiP on an open prairie a half-mile
distant from the place where it started, it was held that it was
contributory negligence on the part of the plaintiff, under the
circumstances, in not plowing around the stacks to protect them
from such fires.^ And in an action against a railroad company
for the loss of a house alleged to have been burned through their
negligence, it was held that the company were not liable for the
1 Pennsylvania B. Co. v. Beale, 78 Pa. 504; ArtsEt;. Company, 34 Iowa, 153; Han-
over B. B. Co. V, Coyle, 66 Pa. S96; North Pa. B. Co. v. Hietman, 13 Wright, 60;
Havers v. Erie Co. 41 N. Y. 296; Alyn v. Boston Co. 106 Mass. 77; Bailway Co.
V. Whitton, 13 Wall. 270.
3 Brown o. Company, 68 Me. 384; Stout v. Company, 2 Dill. C. C. 294.
* Barker v. Savage, 46 N. Y. 191.
^ Devitt V, Company, 60 Mo. 302; Barton v. St. Tionis & Iron M. B. Co. 52 Mo.
263.
* Keesee v. Company, 30 Iowa, 78; Bailroad v. Shaafelt, 47 HI. 497. But see
Kellogg V. Company, 26 Wis. 223. See, also, Peasley v. Company, 96 Mass. 414;
Cook V. Company, 1 Denio, 91; Vaughn v. Company, 3 Hurl. & N. 743.
§ 188 INJURIES FBOM NEGLIOENCE. 275
loss of a package of monej in the house at th^ time of the fire,
bat through the plaintifTs negligence not removed therefrom,
when it might have been, after the fire originated, and without
danger.^ The matter has been more fully considered under the
head of contributory negligence.
§ 133w Negligence of medical meiL — ^To render a physi-
cian liable for negligence there must appear to have been a
failure to exercise such diligence or skill as a prudent medical
man of fair ability would have exercised under the same cir-
cumstances. The decree of diligence required will be propor-
tionate to the nature of the case. Sometimes the highest degree
of diligence is required. But as to the skill required, the phys-
ician is held only to a fair and reasonable degree of skill unless
the physician should pledge himself to the exercise of an extra-
ordinary degree of skill in a particular case, or in the exercise
of a special branch of the profession. A defendant, an ac-
coucheur and physician, was retained to attend the plaintiffs
wife. The court instructed the jury that it was not enough to
make the defendant liable that some medical man of much
greater experience or ability might have used a greater degree
of skill, nor that he might possibly have used some greater
degree of care.^ So, the defendant, a surgeon, was employed
by the plaintiff to treat an injury done to his hand and wrist,
and the plaintiff charged that he conducted himself in such a
careless, negligent, and unskillful manner that the plaintiff's
hand became withered, and was likely to become useless. The
court instructed the jury that the question for them to decide
was whether they were satisfied that the injury was attributable
to the want of a reasonable and proper degree of care and skill
^ Toledo Company v, Pindar, 53 HI. 447.
That no one can maintain an action for a wrong where he has consented or
malerially contributed to the act which occasions his loss, or where the loss is
the result of the negligence of both parties, and without intentional wrong on
the part of the defendant, see Horton v. Ipswich, 12 Cush. 488; Holly v. Com-
pany, 8 Gray, 123; Parker v. Adams, 12 Met. 415; Counter v. Couch, 8 Allen, 436;
WilliaznB v. Company, 2 Mich. 269; Michigan Co. v, Leahey, 10 Mich. 193; Locke
V. Company, 15 Minn. 350; Griggs t;. Fleckenstein, 14 Minn. 57; Dix v. Brown, 41
Miss. 131; M. & C. R. Co. v. WhitAeld, 44 Miss. 466; Galena Co. v, Yandergrift,
34 Mo. 55; Callahan v, Wame,'40 Mo. 131; Meyer v. Company, Ibid. 151; Birge v.
Gardner, 19 Conn. 511; New Haven Co. v. Yanderbilt, 16 Conn. 429.
< Rich V, Pierpont, 3 Post. & F. 35.
276 INJURIES FROM NEOLIGENCE. § 188
in the defendant's treatment. The defendant's business did not
require him to, at all events, perform a cure, nor to use the
highest possible degree of skill.^ So, where the defendant, a
surgeon, was employed to treat a violent fracture of the plaint-
iff's arm, the court held that a surgeon contracts that he has
such skill and knowledge as will enable him to properly and
judiciously perform the duties of his calling. But the law does
not require the highest degree of skill and knowledge, but only
such a reasonable degree as will enable the person safely and
discreetly to discharge the duties assumed.^ These are matters
more properly arising, however, out of implied contract than
strictly within our subject-matter in its relation to the law of
torts.
1 Lamphier v, Phipos, S Car. & P. 475. ^ Wood v. Clapp, 4 Sneed, 65.
§ 1S4-6 DECEIT, FRAUD, AND MISREPRESENTATION. 277
CHAPTER Xni.
DECEIT, FRAUD, ASD MISREPRESENTATION.
§ 134. Deceit, fraud, and misrepresentation.
§ 135. What must be shown, or the action fail.
§ 136. The representation.
$ 137. Knowledj^e of falsity.
§ 138. Ignorance and belief of the plaintiff.
§ 139. Equal means of knowledge.
§ 140. The intention that the representation should be acted upon.
§ 141. Acting upon the representation.
§ 142. Waiver of fraud.
§ 143. Expressions of opinion and belief.
§ 144. Negligence of innocent parties.
§ 134. Deceit, fraud, and misrepresentation. — In this
book I have, as stated at the outset, confined my attention to
the subject in connection with the law of torts. I have not
gone into the subject of injuries arising from breach of con-
tract ; and those misrepresentations which amount to a breach
of warranty are not, therefore, within my present purpose.^
There are some cases of apparent misrepresentation, deceit, and
fraud which are not particularly connected with contracts, or
rather not founded upon them, and which fall within the scope
of the subject-matter, not being susceptible of legal remedy ;
and I will now refer to a few of them.
§ 135. What must be shown, or the action fail. — In
actions for deceit, in order to entitle the plainti£E to civil re-
dress, it must usually appear, first, that the defendant has made
a false representation of material facts ; second, that he made
the same with knowledge of its falsity ; third, that the plaintifE
was ignorant of its falsity, and believed it to be true ; fourth,
1 Warranty rest« upon contract, wbile simple fraud is essentially a tort— Rose
V. Hurley, 99 Ind. 77. But fraud in more frequently set up as a defense to^&
action at law, or relied upon in equity as a ground for rescinding or nullifyii^H
contract than made the foundation for a distinct action for damages.
278 DSCEIT, FRAUD, AND MISREPRESENTATION. § 136
that it was made with the intent that it should be acted upon ;
fifth, that it was acted upon by plainti£E to his damage. It will
now be our province to point out those cases where some of
these elements are wanting, and the qualifications of the rule,
presenting cases, perhaps, where a party may be damaged, but
where he has no legal redress, and therefore cases of dcemnum
absque injuria.
J"
§ 136. The representation. — ^The plaintifE should make it
appear that the conduct imported a definite representation, such
as would justify a prudent man in taking the action complained
of. So the representation cannot consist in the expression of a
mere opinion, however false ; as if an agent of a railroad com-
pany makes false statements in regard to the value of a donation
of land made to the company, and in regard to the amount of
assets of the company, and the probable cost and profits of the
road when completed. This is not deceit so as to constitute a
legal liability, however great the ensuing damage.^ But the
statements must be statements of opinion, and not statements
of fact.^ Very slight expressions are sometimes considered
sufficient to put statements on the footing of opinions ; as where
a defendant, in answer to inquiries concerning the circumstances
and credit of a third person, said to the plaintifE, ^^ I should be
willing to give him credit foi* anything he wanted.? Such a
statement cannot be safely acted upon. The fact that the de-
fendant is willing to give him credit does not justify the plaint-
iff in doing so. But if the opinion is given as an expert, and
given dishonestly, the rule changes ; as where the defendant, a
cattle-dealer, desiring to sell cattle to the plaintiff, expressed
an opinion that the cattle would weigh nine hundred pounds
and upward per head. But he had already weighed the cattle,
and knew that the average weight was considerably below nine
^ Anderaon r. Hill, 12 Smedes & M. 679; Tuck v. Downing, 76 111. 71; Medbnry
V.Watson, 6 Met. 246; Ellis v. Andrews, 06 K. Y. 83. See, also, Holbrook o. Con-
nor, 60 Me. 576; Cooper v. Lovering, 106 Mass. 79; Martin v. Jordan, 60 Me.
531; Bishop v. Small, 63 Me. 12.
3 Van Eppe v. Harrison, 5 Hillf 63; Page r. Parker, 43 N. H. 363; McFadden o.
Bobinson, 35 Ind. 24; Morehead v. Eades, 3 Bush, 121 ; Ellis o. Andrews, 56 N. Y.
• Campbell v. Fleming, 1 Ad. & £. 40; Bedford v. Bagshaw, 4 Hurl. & K.
. See Bradley v. Poole, 96 Mass. 169.
§ 186 DECEIT, FRAUD, AND MISREPRESENTATION. 279
hundred pounds.^ The representation should relate to a present
or past state of facts ; if it relate to a matter in the future, it must
be uncertain, unless it be the expression of an intention to do an
act, and it can be made to appear (a matter of extreme diffi-
culty) that the defendant had no such intention.^ So, also, the
false representation should be of matter of fact, not of law. If
a party relies upon the latter, he usually has no redress, what-
ever damage he may sufiPer. A stockholder in a corporation
cannot, therefore, maintain an action against the company for
misinforming him of the legal effect of his contract of subscrip-
tion.^ But if a person has superior means of knowing the law,
and professes to be able to give correct information to one ignor-
ant of it, the party may be liable.^
It is said that an action cannot be maintained for the telling
of a bare lie, knowing or not knowing the falsity of the state-
ment, if said without any design to impose upon or cheat an-
other, and without any intention that the other should rely or
act upon it.^ So if a person has reason to believe and actually
believes a particular fact to be true, and represents what he be-
lieves, he is not liable merely for his mistake, unless he be under
some legal obligation to state the truth correctly.® The inten-
tion to have the other party act on the false information is a sa-
lient feature in this class of actions. If a person makes a repre-
sentation in good faith, honestly believing it to be true, and has
reasonable ground for his belief, he is not then responsible if he
is altogether mistaken and formed a wrong judgment in the mat-
ter, whatever damage may result to plaintiff, unless, as before
observed, he is under legal obligation to find out the truth.^
1 Birdsey v. Butterfleld, 34 Wis. 52; Picard v, McGormick, 11 Mich. 68; Kostv.
Bender, 25 Mich. 515; Pike v. Fay, 101 Mass. 134.
* Jordan v. Money. 5 H. L. Gas. 185; Citizens' Bank v. First Natl. Bank, L. B.
6 H. L. 352; Pedrick v. Porter, 5 Allen, 324. See Kimball v. Company, 9 Allen,
540. ^
* Upton V. Trlbilcock, 91 U. 8. 45.
*<Moreland v, Atchison, 19 Tex. 303.
•Bebn v. Kemble, 7 Com. B. N. S. 200.
•Collins V. Evans, 5 Q. B. 82^); Ormrod v. Huth, 14 Mees. & W. 664; Chllders
V. Wooler, 29 Law J. Q. B. 129; Marsh v. Falkner, 40 K. Y. 562; Weed v. Case, 55
Barb. 534.
7 Haycraft v. Creasy, 2 East, 105.
280 DECEIT, FRAUD, AND MISREPRESENTATION. § 137
§ 137. Knowledge of falsity. — So far as the question of
damages is concerned, independent of contract, an honest state-
ment of fact, though made with a view to being acted upon,
will not always, upon turning out to be untrue, create a liability
for damages on the part of the person making the representa-
tion.^ Knowledge of the falsity of the statement must be fixed
upon the defendant, unless it was made of his own positive
knowledge, when he. knew nothing at all about it, or, second,
unless made of a fact peculiarly within his knowledge or means
of knowledge, and not withm the plaintifiP's. If the statement
was a mere matter of opinion, no action will lie ; neither will it
if the plainti£E himself knew the truth.
The law raises no presumption of guilty knowledge from the
mere fact that the representation was false ; knowledge of the
falsity — the scienter — must be proven.^ This is the general
rule. There are, however, many cases where the general rule
does not hold good, and where the defendant is either presumed
to know or held bound to know the true state of things — as the
state of his own business and his own peculiar circumstances,
the amount of money he is worth, etc.^ So, also, if a person,
however honest, assumes to act as agent for another, and has no
actual authority, he renders himself liable to the person misled.^
But if the person so acting honestly and fully discloses all the
facts touching the supposed authority — even if the plaintiff
should honestly suppose that the facts gave the defendant au-
thority, the former is without redress, because he has drawn his
own inference, and it is bis mistake.^ Where persons profess
to act as experts, the scienter need not be proven.® Where a
^Collins V. Evans, 5 Q. B. 820; Thorn v. Bigland, 8 Ex. 725; Ormrod v. Huth,
14 Mees. & W. 651; Childera v. Wooler, 2 £1. & E. 287; Behn v. Kemble, 7 Com.
B. N. S. 260; Mahurin v. Hardinf;, 28 N. H. 128 ; Barley v. Walford, 9 Q. B. 197;
Evertson v. Mills, 6 Johns. 138; Case v. Boughton, 11 Wend. 106; Edick v, Crim,
10 Barb. 445. See Cornfoot v, Fowke, 6 Mees. & W. 358. See, contra, Haycraft
V. Creasy, 2 East, 92: Taylor v. Ashton, 11 Mees. & W. 401.
^Barnett v. Stanton, 2 Ala. 181; McDonald v. Trafton, 15 Me. 226.
* Morse t;. Dearborn, 109 Mass. 593.
4 Mahurin v. Harding, 28 N. H. 128 ; Noyes v. Loring, 65 Me. 408: Indiana Co.
V, Tyng, 63 K. Y. 653; May v. Company, 112 Mass. 90. But see Play ford v. Conh
pany, Law B. 4 Q. B. 706.
6 Newman v. Sylvester, 42 Ind. 106.
• Koat V, Bender, 25 Mich. 515 ; Pickard v. McConnick, 11 Mich. 68. See McOar
V. WUliams, 26 Ala. 467.
§ 138 DECEIT, FRAITD, AND MISREPBESENTATION. 281
statement is made ia the belief that it is true, and is based upon
information which justifies it, but which turns out incorrect,
there is no liability ; but the information must not be inad-
equate, such as rumors, etc.^
§ 13& Ignorance and belief of the plaintiff — The
plainti£E must usually be ignorant of the true state of facts, and
must have relied upon the representations of the defendant to
fix the latter's liability. The plaintifE must be deceived by the
defendant, or if there is damage it is damnum absque injuria as
against the latter. If the plaintiff I\ad notice or knowledge
of the truth, or acted upon independent information and not
upon the defendant's representations, he is without remedy
against the latter, and the burden of proof is upon the plaint-
iff.^ If a purchaser of property chooses to make investigations
of his own as to the truth of the representations, he is without
remedy, nor can he say that the defendant concealed facts if the
latter did nothing to prevent the purchaser from making as am-
ple investigation as he chose.^ There are cases, also, where the
plaintiff, though actually ignorant of the facts, and supposing
the representation to be true, is held bound to know them, as
where he has the means directly at hand of informing himself,
and fails or refuses to make the inquiry. Notice is here pre-
sumed, and such notice is considered equivalent to knowledge —
as where, in the absence of express warranty, goods are lying
at hand in a condition for ample inspection, the plaintiff can-
not say he was deceived as to their quality, though he might
have been.* But if he be prevented, by the acts, arts, or words
of the defendant, from making such investigation, the rule
changes.^ As where a defendant, in selling a patent, makes
false representations as to what the patent covers. The plaintiff
1 Brooks V. Hamilton, 15 Minn. 26; Faribault v. Sater, 13 Minn. 223; Taylor v,
Leith, 26 Ohio St. 428; Botsford v. Wilson, 75 III. 132.
^Hagee v. Grossman, 31 Ind. 223; Tuokv. Downing, 76 HI. 71; Whiting t;. HUl,
23 Mich. 3d9; Pasley v. Freeman, 3 T. R. 51.
* Halls V. Thompson, 1 Smedes & M. 443.
^ Ely V. Stuart, 2 Md. 408. See, also, Salem Rubber Co. v, Adams, 23 Pick. 256;
Brown v, Tieach, 107 Mass. 364; Buck v. McCaughtry, 5 T. B. Mon. 221.
< Mead v. Bunn, 32 N. Y. 275; Parham v, Randolph, 6 How. (Miss.) 435; Mc-
Clellan v, Scott, 24 Wis. 81; Kiefer v. Rogers, 19 Minn. 32; Matlock v. Todd, 19
Ind. 130; Holland v. Anderson, 38 Mo. 56.
282 DECEIT, FBATJD, AND MI8BEFRE8ENTATION. § 189-40
may rely upon these representations, though an inspection o£
the records of the Patent OfBce would disclose their falsity.^
A person able to read, and of sound mind, is usually bound
to know and understand the contents of an instrument executed
by him or in his possession as a party to it, unless it contain
technical or foreign terms, and he has been misled as to their
meaning. Such a person cannot generally be heard to say that
he has not read the instrument, and that the other party falsely
stated its contents to him.^ But, of course, these principles do
not apply to cases of trick or artifice, as where a party has by
fraud been made to sign a different paper from the one he in-
tended to sign.
§ 139. Equal means of knowledge. — An action for deceit
cannot be maintained by a person who has himself neglected to
exercise reasonable care. Where both parties have equal means
of knowledge, the law will not protect the negligent party in
case of misrepresentation by the other ; as where a note was
taken for a horse, and the vendpr took the note after the vendee
had by his conversation thrown suspicion on it, and refused to
indorse it. It was held, in an action for deceit by the vendor
against the vendee, that, as the former had taken the note at his
own risk, the principle of caveat emptor applied ; and unless the
latter had used some trick or artifice to conceal the defects in
the note, he was not liable for deceit* The principle of caveat
emptor might have applied, though not the rule, as it is obvious
that the vendor was not the emptor.^
§ 140. The intention that the representation should be
acted upon. — ^It must appear, where a party complains of false
representations whereby he was caused to suffer damage in a
transaction with some third person^ that the defendant intended
that he should act upon the representation, or knew that he
would, or that the plaintiff was justified in inferring such inten-
tion. It is not enough to show that the misrepresentation was
1 David V. Park, 103 Mass. 601.
< Rogers v. Place, 35 lud. 577; Bacon v, Markley, 46 Ind. 116; Hawkins o. Haw^
kina, 60 Cal. 558. See Craig v. Hobbs, 44 Ind. 363; KeUer v. Ck>mpany, 28 Ind. 170.
* Smith V. Andrews, 8 Ired. 3; Bell v. Byerson, 11 Iowa, 283. See Moore o.
TurbeyiUe, 2 Bibb, 602; Saunders v. Hatterman, 2 Ired. 32.
§141 DECEIT, FEAUD, AND MI8EEFRE8ENTATION. 288
made with knowledge of its falsity.^ Where the buBiness trans-
action is between pliuntiff and defendant, the case is differ-
ent
§ 14L Acting upon the representation. — ^The representa-
tion must be acted upon to plaintiff^s damage. If not, it pre-
sents a case rather of injuria sifie damno than of damnum ahs-
que injuria. If the communication, hoYCver, falsely or fraud-
ulently be communicated by an intervening person, he must
have authority to carry it to the plaintiff. If he has none,
ahhough the defendant may have acted upon the representa-
tion, the defendant is not liable. So in case of misrepresenta^
tions in a prospectus which was addressed to the public and in-
vited proposals for allotment of shares. The plaintiff had not
purchased his shares from the company, but on the market,
yet relying upon the statements in the prospectus. He was
held not entitled to judgment.^ There must be something con-
necting the directors and the party deceived, as delivering the
prospectus to the purchaser, who thereupon buys, etc. It is
said that one who has been prevented from attaching property
by the fraudulent representations of the owner, or of his agent,
is deemed to have suffered no legal damage, though another
attachment should intervene, and the debt be lost. The person
acquired no lien on the property, and therefore lost none. His
intention to attach was simply frustrated.^ If the attachment
has been already levied, and then lost by reason of the deceit,
the case is different.^ In cases of slander of title, the plaintiff
must prove that the statement of the defendant was made with
actual malice, and that it Has been accompanied with actual spe-
cific damage ; otherwise he is without remedy. The statement
must have been made with knowledge of its falsity, and with
intent to deceive, this constituting ^^ actual malice." If the
1 Fftsley V, Freeman, 3 T. R. 51; Thorn o. Bigland, 8 Ex. 725; Tapp v. Lee, 3
Boa. & P. 367; Polhie v. Walter, 3 Bam. & Add. 123; Watson v, Ponlson, 15
Jar. 1112.
'Peek V. Gnmey, 43 Law J. Ch. 19; in House of Lords, overruling Bedford v.
Bagshaw, 4 Hurl. & N. 54S.
* Bradley v. Fuller, 118 Mass. 239; Lamb v. Stone, 11 Pick. 527.
* Swift o. Winterbotham, Law B. 8 Q. B. 244; Peek v. Gumey, Law R. 6 H. T^
377.
284 DECEIT, FRAUD, AND MISREPRESENTATION. § 142
statement is made in good faith,^ ^ith a belief in its truth — as
trustee, for instance, of a particular estate — ^the plaiutifE has no
redress. Besides, the third person must have been deceived bj
the false statement, and must have acted upon that particular
statement. If he knew. the truth, or acted upon other infor-
. mation, the action cannot be maintained. With regard to signs
and badges of business, it must appear that the defendant knew
of the existence of the plaintifip's mark when he committed the
injury, that he intended to avail himself of the plaintifiTs busi-
ness advantages by reason of the trade-mark, or other sign or
badge, and that the public were thereby deceived.^ But St
seems that in a proceeding for injunction it is not necessary to
prove the defendant's knowledge or intent to deceive ; simple
priority of use is sufficient.*
§ 142. VSTaiver of fraud. — If a vendee knowingly accepts
and retains property or any benefit under a contract tainted
with fraud, and uses the property acquired as his own, after the
discovery of the fraud, or does any positive act acquiescing in
the fraud, or unduly delays to reclaim his property or to give
up what he has received, he may thus place himself in the po-
sition of affirming the transaction, and be precluded from his
remedy, whatever damage he may have suffered.*
Tndorsers. — If a person is induced to sign his name as surety
to a negotiable note without reading it, and under false repre-
sentations, this constitutes no sufficient defense to an action by
the payee against the surety, if it do not appear that the payee
had any knowledge of the alleged fraud. And this upon the
principle that where one of two innocent parties must suffer a
loss, the one whose carelessness or acts have been instrumental
in producing the loss must bear it.^
1 Pater v. Baker, 3 Com. B. 831, 868; Malacby v. Soper» 3 Bing. N. G. 371; Pitt
V. Donovan, 1 Maule & S. 639; McDaniel v. Baca, 2 Gal. 326; Stark v. Chitwood,
5 Kan. 141.
sSykes v. Sykes, 3 Bam. & G. 541; Marsh v. Billings, 7 Gush. 59; Rodgeis v,
Kowill, 5 Gom. B. 109; Bigelow on Torts, 36; Bigelow's L. G. Torts, 5^72; Sin-
gleton V. Bolton, 3 Doug. 293.
> Millington v. Fox, 3 Mylne & G. 338.
* Negley c. Lindsey, 67 Pa. 217.
ft Wright V. Flynn, 33 Iowa, 159; Lepperv. Kultman, 35Ind. 384.
§143-4 DECEIT, FRAUD, AND HI8REPRE8ENTATIOX. 286
§ 143. BzprMsioiiB of opinion and belief. — When a rep-
resentation is made concerning what is a mere matter of opinion,
aboat which every man can exercise his own judgment, and in-
vestigate, it is the plaintiff's own fault if he is deceived. How-
ever erroneous an opinion may be, if .the party giving it pos-
sesses no exclusive means of knowledge, and believes it to be
true, there is no fraud. So the credit to which a man is en-
titled in the commercial world is a matter which is to a great
extent a matter of judgment and opinion, on which different men
will form different beliefs ; and if one, in answer to inquiries re-
sfiecting the solvency or credit of a particular individual, or of
a partnership or a company, only states his own honest opinion,
he is not responsible for its correctness.^ If a sheriff, about to
make a levy, makes inquiry of another as to whether certain
goods do or do not belong to the debtor, or as to the identity of
the person of the debtor, and the person applied to only repre-
sents what he believes to be true, he is not responsible in an ac-
tion for deceit, if the information he gives turns out to be false,
and the sheriff who has acted upon it as true be damnified. But
if a person officiously interferes and gives directions, the case is
different.^
§ 144. Negligence of innocent parties. — If the condi-
tion of things is such that one of two innocent parties must
suffer from a fraud, and the negligence of one has enabled the
fraud to be committed, he who is chargeable with the negligence
must bear the loss. It is damnum absque injuria as to him.
So if one, through his own culpable carelessness while dealing
with a stranger, allows himself to be inveigled intQ signing a
negotiable note which he believes is something entirely different,
he cannot defend against a bona fide holder.^ But it is alsd
iHaycraft r. Creasy, 2 £a8t, 105; Collins v. Evans, 6 Q. B. 828; Hubbell r.
Meigs, 60 N. Y. 481; Cabot v. Christie, 42 Vt. 121; '^'eed v. Case, 65 Barb. 534;
Marsh v, Falkner. 40 N. Y. 662; Tuck v. Downing, 76 111. 71 ; Pasley v. Freeman,
3T. R. 51; Ross v. Company, L. R. 3 Eq. 122; Fulton v. Hood, 34 Pa. 365; Bris-
tol V. Braid wood, 28 Mich. 191; Ellis v. Andrews, 66 K. Y. 83; S. C. 15 Am. R.
879; Payne v. Smith, 20 Ga. 654; Reed v. Sidener, 32 lud. 373; Fish v, Cleland,
33 in. 238; Lehman v. Shackleford, 50 Ala. 437; Childers v. Wooler, 29 Law J.
Q. B. 136; Wakeman v. Dalley, 51 K. Y. 27.
s Collins V. Evans, 5 Q. B. 830. See Childers v, Wooler, 29 I^aw J. Q. B. 129.
* Douglass V. Matting, 29 Iowa, 498 ; S. C. 4 Am. R. 238; Chapman v. Rose, 66
N. Y. 137 ; 8. C. 15 Am. R. 401; Hern v. Nichols, 1 Salk. 289. See, also, Mead v.
286 DECEIT, FBAUD, AND MISREPRESENTATION. § 144
held that if the party whose signature was .fraudulently pro-
cured was guilty of no negligence, the paper is absolutely void,
in whosesoever hands it may be ; ^ and, as a general rule, it is
probably true that even negotiable paper is vmd, as to all but
bona fide holders, where the signature is obtained by trick or
artifice, and the party believes he is signing an instrument dE
an entirely di£Eerent character.^ An alteration of a note, by
filling a blank carelessly left therein, will, under some circum-
stances, avoid it in (he hands of a bona fide purchaser.'
Munson, 60 111. 49; Putnam v. Sullivaii, 4 Mass. 45; Brahan v. Ragland, 3 Stewt.
247; Craig v. Hobbs, 44 Ind. 363; McDonald v. Muscatine Bank, 27 Iowa, 319;
Holmes v. Trumper, 22 Mich. 427; Clarke v. Johnson, 54 HI. 296; Shirts v. Ovex^
John, 60 Mo. 306; Leach v. Nichols, 55 HI. 273; Judson v. Bennett, 21 N. Y. 238.
1 Brings V. Ewart, 51 Mo. 245; S. C. 11 Am. R. 445; Gibbs v, linaberry, 22
Mich. 479; S. C. 7 Am. R. 675; Taylor v. Atchison, 54 111. 196; S. C. 5 Am. R.
118; Walker v, Ebert, 29 Wis. 194; Butler v. Cams, 37 Wis. 61; Kellogi? v.
Steiner, 29 Wis. 626.
'See cases already cited, and Corby v. Weddle, 57 Mo. 4jS2; Jones v. Anstin,
17 Ark. 498; Martin v. Smylee, 55 Mo. 577; Foster v. McKinnon, Law R. 4 G. P.
704; Anderson v. Walter, 34 Mich. 113; Sims v. Bice. 67 HI. 88; Munson v.
Nichols, 62 111. HI; Louchheim v. Gill, 17 Ind. 139; Byers v. Daugherty, 40 Ind.
198; Laidla v. Loveliss, 40 Ind. 211.
* Ivory V, Michall, 33 Mo. 398; Rainbolt v. Eddy, 34 Iowa, 440; 8. C. 11 Am. R.
152; Washington Savings Bank v. Ecky, 51 Mo. 272; Nance v. Lary, 5 Ala. 370;
Stacy V. Ross, 27 Tex. 3.
r
TABLE OF OASES.
TABLE OF CASES.
AbboU V. Kimball, 19 Yt. 568, p. 96.
V. Macfie, 33 liaw J. Ex. 117, p.
242.
Abrams v. Smith, 8 Black. 95, p. 71.
Abraham v. Reynolds, 6 Hurl. & N.
149. pp. 268, 261.
Abrahams v. Kidney, 104 Mass. 222, p.
48.
Absor V, French, 2 Show. 28, pp. 13, 18,
118. . '
Acker v. Ledyard, 8 Barb. 614, p. 228.
Ackerly v. Parkinson, 3 Maule & S.
411. p. 206.
Acton V. Blundell, 12 Mees. & W. 324,
pp. 161, 162, 155, 166, 159, 164, 165. 170,
174, 175, 176, 177, 184, 187, 190, 204.
Adams v. Carlisle, 21 PItk. 146, p. 239.
17. Lisher, 3 Blackf . 241, p. 89.
V. Walker. 34 Conn. 466, pp.
197,202.
V. WagRonel, 33 Ind. 531, p. 37.
Adkins v. Brewer, 3 Gowen, 206, pp.
It 20, 211.
Aertsen r. The Aurora, Bee Adm. 161,
. p. 42.
Aga Kurboolie Mahomed, 4 Moore P.
C. C. 239. p. 221.
Aier v. FrosL 1 Roll. R. 431, p. 66.
Akerley v. Haines, 2 Caines, 292, p. 60.
Albro V. Agawam, 6 Gush. 75, p. 2S6.
V. Company, 6 Gush. 76, p. 267.
Alcorn v. Hooker, 7 Blatchf . 68, p. 76.
Aldrich v. Howard, 8 R. I. 246. p. 59.
Aid worth v. Stewart, 4 Fost. & F. 967,
p. 38.
Alexander v. Milwaukee, 16 Wis. 247,
p. 12.
Alfele V. Wright, 17 Ohio St. 238, p. 66.
Alfred's Case, 9 Go. 586. p. 4.
Alfred v. Farlow, 8 Q. B. 854, p. 66.
Allen V. Dykers, 3 Hill, 593, p. 110.
V. Hillman, 12 Pick. 101, pp. 71,
74.
V. Wright, 8 Gar. & P. 626, p. 56.
Allison V, Chandler, 11 Mich. 642, p. 237.
AUyn t7. Boston &c. 106 Mass. 77, pp.
246 274.
Alsop v. Yates, 2 Hurl. & N. 768, p.
248
Alston V. Scales, 9 Bing. 3, p. 19.
Alton V. Hope, 68 HI. 167, p. 202.
Ambler t;. Church, 1 Root, 211, p. 209.
D. A. I.— 19.
American Company v. Bradford, 27
Gal. 360, pp. 205, 206.
Ammerman v. Crosby, 26 Ind. 451, p. 91.
Anderson v, Buckton, 1 Str. 192, p. 4.
V. Hill, 12 Smedes & M. 679,
p. 278.
V. Walter, 34 Mich. 113, p.
286.
Andre v. Johnson, 6 Blackf. 375.
Andrews v, Morris, 1 Q. B. 3, p. 220.
Ankin v. Woodward, 6 Whart. 677, p.
96.
Annapolis Co. v. Gantt, 30 Md. 116, p.
233.
Anon. 3 Atk. 644, p. 209.
I^fft. 390; 7 Mod. 8, p. 221.
Godb. 40; Goulds. 88, p. 75.
Year Book, 13 Henry VII, fol.
10, pi. 10, p. 56.
Freem. 277, p. 68.
Style, 49; 1 And. 268, p. 76.
Style, 70, 392 ; 3 Lev. 231 ;
Goulds. 25; 2 BrownL 84, pp.
65,66.
Ansman v. Veal, 10 Ind. 367, p. 67.
Antoni v. Belknap, 102 Mass. 193, p. 98.
Anthony v. Haney, 8 Bing. 187, p. 118.
V. Lapham, 5 Pick. 11, p. 195.
Arctic F. Ins. Go. v. Austin, 69 N. Y.
470, p. 239.
Arkwright v. Gell, 5 Mees. & W. 226,
pp. 1^, 201, 203, 204.
Armstrong v. Company, L. R. 10 Ex.
47, p. 250.
V. Garrow, 6 Gowen, 466,
p. 228.
Arnold v. Commonwealth, 8 B. Mon.
109, p. 217.
Artz V. Company, 34 Iowa, 153, p. 274.
Ashby V. White, Ld. Raym. 938 : 1 Sal^.
19; 8 State Trials, 89; pp.
3, 10, 211.
Ashley v. Harrison, Peake, 193; 1 Esp.
48 p 234.
V. Port Huron, 35 M^ch. 296,
p. 202.
t;. Wolcott, 11 Gush. 192, pp.
139, 201.
Ash worth v, Stanwix, SO Law J. Q. B.
183, p. 266.
Aspden v. Seddon, L. R. 10 Gh. Ap.
m, p. 128.
Assop V, Yates, 2 Hurl. & K. 770; 27
I^aw J. Ex. 166, p. 261.
890
TABLE OF CASES.
Aston V. Blagrave, 3 Lev. 30; 3 Mod.
26, pp. 74. 76.
AtkiDB V. Gamble, 42 Gal. 99, pp. 100,
104, 109, 110.
Atkinson v. Company, 12 Kan. 354, p.
233
Attorney-General o. Briant, 15 Mees.
& W. 185. p. 18.
Attorney -General v. Chambers, 12
Beav. 157, p. 132.
Attomey-Oeneral v. College, 30 L. J.
Cli. 7U9, p. 22.
Attorney-General v, Glllett, 56 111. 132,
p. 12.
Attorney-General v. Hudson, 1 Stockt.
26, p. 02.
Attorney-General v. IXKikwood, 9Mee8.
& W. 401, p. la
Attorney-General V. Middleton, 3 Hurl.
& N. 138, p. 19.
Attorney -General v. Patterson, 1
Btockt. 624, p. 62.
Auberry v. James, 1 Vent. 70. p. 42.
Auditor t;. Atchison &c. 6 Kan. 500, p.
210.
Aurora v. Gillett, 56 111. 132, p. 202.
Aurora &c. v. Grimes, 13 111. 585, p. 238.
Aurora v. Reed, 57 111. 29, 30, pp. 12, 13,
197.
Austin V. Debnam, 3 Bam. & C. 139, p.
91.
Avery v. Cheslyn, 3 Ad. &. £1. 75, p. 98.
Ayer v. Craven, 2 Ad. & £1. 2. p. 74.
Ayers v. Grider, 15 111. 37, p. 70.
Ayrton r. Abbott, 14 Q. B, 1, p. 209.
Ayres v. Covill, 18 Barb. 260, p. 66.
Babcock v. Company, 5 C. E. Green,
296, p. 59.
Bachelder v. Heagan, 18 Me. 32, p. 236.
Bacon v. Markley, 46 Ind. 116, p. 282«
r. Towne, 4 Cush. 217, p. 89.
. Bailey v. Wiggins, 5 Harris, 462, p. 209.
Baird V. Moxtord, 29 Iowa, 531, p. 239.
Balrd v. Wmiamson, 15 C. B. N. 8. 376;
33 L. J. N. S. C. P. 101, pp. 137. 143.
Baker v. Bolton, 1 Camp. 493, pp. 32, 33.
V. Boston, 12 Pick. 184, p. 197.
V. State, 27 Ind. 485, pp. 210, 223.
Baldwin v. Hayden. 6 Conn. 453, p. 36.
V. Marshall, 2 Humph. 116, p.
227.
Ball V. Bridges, Cro. Eliz. 746, p. 67.
V. Nye, 99 Mass. 582, pp. i;>7, 138.
17. Rav, L. B. 8 Ch. 467, p. 58.
Ballacorkish &c. Co. v. Harrison, L. B.
5 P. C. A. 49; 8 Moak, 88. p. 144.
Balston v. Bensted, 1 Camp. 463, pp.
164, 171, 175, 184, 190.
Baltimore & O. B. v. Fitzpatrick, 36
Md. 32, p. 239.
Baltimore &c. v. Mulligan, 45 Md. 486,
p. 243.
Baltimore Co. v. State, 41 Md. 268, p.
253.
Bamford v, Tumley, 3 Best & Smith,
62, p. 68.
Banfield v. Lincoln, Freem. 278. p 65.
Bankart v. Houghton, 27 Beav. 426; 28
L. J. N. S. Ch. 473, p. 145.
Bank v. Marston, 7 Ala. 106, p. 229.
o. N. £. Bank, 11 How. 240. p.
113.
Barber v. Arrostead, 10 Ired. 690, p. 49.
Bard v. Yohn, 26 Pa. 482, pp. 266, &r.
Barger v. Barger, 18 Pa. 489, p. 70.
Barham v. Nethersal, 4 Rep. 20a, p. 66.
Barker v. Green, 2 Bing. 317, p. 216.
V. Ringrose, Popli. 184, p. 76.
V. Savage, 45 N. Y. 191, p. 274.
Barley v, Walford, 9 Q. B. 197, p. 280.
Barnard V. Campan,29Mich. 162. p. 226.
V. Poor. 21 Pick. 378, p. 236.
Bamardiston v. Soame, 6 St. Trials,
1063, p. 207.
Barnes v. Foley, 1 W. Blai^ 643^ p. 228.
17. Martin, 15 Wis. 240, p. Sf.
V. 6abron« 10 Nev. 217, p. 188.
t;. Ward, 9 Com. B. 392, p. 23.
Bamett v. Stanton, 2 Ala. 181, p. 28a
Barrington v. Turner, 3 Lev. 28, p. 96.
Barron v. Mason, 31 Vt. 189. pp. 89, 91.
Barrows v. Carpenter, 1 Cliff. 204, p. 77.
Barry v. Allen, 8 Allen, 127, p. 197.
V. Amaud, 10 Ad. & £. 646, pp.
209,222.
Bartlet v. Crozier, 17 Johns. 439, re-
versing S. C. 15 Johns. 250, pp. 228,
Bartley v. Richtmyer, 4 N. Y. 38, p. 48.
Barton v. St. Louis & Iron IbL R. Co. 52
Mo. 263, p. 274.
Bartonshill Coal Co. v. Maguire, 3
Macq. 300, p. 261.
Bartonshill Coal Co. r. Reid, 3 Macq.
266, 294, pp. 30, 262, 266, 261, 264.
Bartonshire &c. v. McGuire, 3 Macq.
300, p. 30.
Bassett v. Company, 43 N. H. 569, pp.
138, 161, 177, 184, 191.
Basten v. Carew, 5 Bam. & C. 652; 5
Dowl. & R. 558, p. 209.
Baum 17. Clause. 5 Hill, 199, pp. 76, 77.
Baylis r. Strickland, 1 Scott 14 . R. 540,
p. 209.
Bealey v. Shaw, 6 East, 208, p. 196.
Beard v. Murphy, 37 Vt. 99, p. 131.
Beatty v. Gilmore, 16 Pa. 463, pp. 239,
244.
r. Perkins, 6 Wend. 382, p. 221.
Beauchamp v. Croft, Kellw. 26, p. 90.
Beaulieu v. Portland, 48 Me. 291, pp.
256, 261.
Beaurain v. Scott, 3 Camp. 388^ p. 208.
Beckwith t7. Philby, 6 Barn. & C. 636, p.
66.
Bedell v. Company, 44 N. Y. 367, p. 238.
Bedford t>. Bagshaw, 4 Hurl. & N. 638,
pp. 116, 278, 283.
Beers v. Company, 19 Conn. 660, p. 239.
Behn t7. Kemble, 7 Com. B. N. S. 260,
pp. 279, 280.
Behrens t7. McKinzie, 23 Iowa, 343, p. 32.
Belair t7. Company, 43 Iowa, 662, pp.
249,253.
Belcher t;. Farrar, 8 Allen, 326, p. 197.
Belk V. Broadbent, 3 T. R. 183, p. 221.
\
TABLE OF CASES.
291
BelUuBy v. Buoh, 16 Mees. ft W. 590,
VP. 74, 75.
Bell V. Byenon, 11 Iowa, 233. p. 282.
V. Pterny, 1 Ired. 88, p. 89.
«. Thfttcfaer, Freem. 276, p. 75.
Bdlefofitaiiie &c v, Snyder, 24 Ohio K.
8.671, p. 245.
BaUefontaine & I. R. Go. v. Snyder. 18
Ohio St. 399, pp. 31, 245. 249, 260.
Betlefontalne &c. v. Hunter, 83 Ind.
365, p. 245.
BtflNUM V. Gonpany, 28 K. Y. 42, pp.
Benedict v. GoM, 3 Barb. 459, p^ 21.
r.WlMeler, 8 Gray. 409, p. 11.
9. Falmer, 49 Pa. 157, p. 210.
V. Kew Orleaoa, 14 La. An.
120, p. 2L
o. Whitehonae. 2 li. T. N. & 45,
p. IS.
fieDtOB V. Brown, 1 Sid. IBS, p. 2Ml
V. Whitaey. Crabbe a O. 417,
p. 42.
Bentz r. AnMtrour, 8 Watts. & 8. 401,
P.206L
Bereicfa v. Harye, 9 Ner. 812, pp. 103,
116.
Berge v. Gardner, 19 Conn. 507, p. 280.
Beseej v. Olliott, T. Raym. 4(f7, p. 38.
Beswick o. Chappel, 8 B. Mon. 486, p. 69.
Betts V. Trevaman, Oro. Jac. 536, p. 75.
Berard v. Hoffman, 18 Md. 479, pp.
206, 211.
Bibby r. Carter, 28 I^aw J. Ex. N*. S.
182; 3 Hurl. & N. 153, p. 135.
Bieseigal v. New York, 33 Barb. 429, p.
243.
Biffeio w V. Reed, 51 Me. 325, pp. 2.')9, 245.
Biliingsby v. Rankin, 2 Swan, 82, pp.
217 218
Billing V. Knight, 2 Bulst. 42, p. 66.
Billings «. Lafferty, 31 111. 318, p. 210.
V. Russell. 23 Pa. 189, p. 221.
V. Wing, 7 Vt. 430, p. 68.
Bird V. Holbrook, 4 Bing. 628, p. 40.
V, Jones, 7 Q. B. 742, p. 52.
V. Perkins, 33 Mich. 28. pp. 218. 221.
Birdsey v. Butterfield. 34 wis. 52, p. 279.
Birge v, Gardner, 19 Conn. 511, pp. 30,
275.
Bishop V. Schneider, 46 Mo. 472; 2 Am.
B. 53.5; p. 227.
V. Small, 63 Me. 12, p. 278.
Bissell V. Baker, 19 Ark. 308, p. 29.
Bizzell V. Booker, 16 Ark. 308, p. 3.
Blades v. Higgs, 30 Law J. Com. P. 347;
12 Com. B. N. S. 50:5. p. 36.
Blair v. Sharp, Breese, 11, p. 69.
Blake r. Jerome. 14 Johns. 406, p. 118.
Blakemore v. Company, 8 £1. & B. 1051,
p. 4,
Blakely &. LeDuc, 19 Minn. 187, p. 239.
Blanchard v. Baker, 8 Greenl. 253, p.
195.
Blaymire v. Haley, 6 Mees. & W. 55,
p. 47.
Bliss V. Kennedy, 43 III. 68. pp. 194, 196.
17. Kingdom. 46 Cal. 651, p. 206.
V. Greely, 45 N. Y. 671, p. 16*i.
Blood r. Sayre, 17 Vt. 609, pp. 207, 211.
Bloss v. Toby, 2 Pick. 320, p. 66.
Blyth u. Topham, Cro. Jac. 158, p. 14.
Bod well V. Osgood, 3 Pick. 379, p. 89.
Bogert V. Phelps, 14 Wis. 88, p. 221.
Bolano v, R. R. 36 Mo. 490, p. 31.
Boland v. Company, 36 Mo. 484, p. 250.
Bolch V. Smith, 31 Law J. Q. B. 201, p.
251.
Boldroe v. Porter, Yel. 22, p. 66.
Boldt V. Company, 18 N. Y. 482, p. 257.
Bolton V. Crowther, 2 Bam. & C. 708,
p. 12.
9. Crowther, 4 Dowl. & R. 195,
p. 21.
Boaoiii V. Backhouse, 96 Bng. O. L. B.
622; 9 H. L. Cas. 503, p. 130.
Boobler v. Boobier, 39 Me. 406, p. 94.
Bootbby v. Company, 51 Me. 318, p. 181.
Bosd V. Company, 2 Har. 314, p. 21.
Boston &c. Company v, Boston &c.
Company, 16 Pick. 512; S. C. 23 Pick.
360, p. 21.
Boston & R. M. D. Corporation v. New-
man, 12 Pick. 467, p. 21.
Boston &c. V. Dana, 1 Gray, 83, p. 33.
Botsford V. Wilson, 75 111. 132, p. 281.
Bottoms V. Mithvin, 26 Ga. 481, p. 217.
Bonlton v. Crowther, 2 Barn. & Q. 706,
pp. 19, 62.
Bovill V, Pimm, 11 Ex. 718, p. 96.
Bowling V. Arthur, 34 Miss. 41, p. 229.
Bowlsby V. Spear, 31 N. J. 351, p. 139.
Boyd V. Cross, 85 Md. 194, pp. 89, 90.
Boyle V. Brandon, 13 Mees. & W. 738»
pp. 48, 2m.
Bradley, Ex parte, 7 Wall. 364, p. 211.
Bradley t7. Carr, 3 Scott N. R. 521, p.
208
V. Fisher, 13 Wall. 335, pp. 209,
211, 214.
17. Fuller, 118 Mass. 239, p. 278.
t7. Heath, 12 Pick. 163, p. 84.
V. Poole, 98 Mass. 169, p. 278.
17. Wyndham, 1 Wils. 44, p.
218.
Bradshaw v. Walker, Hob. 249, p. 68.
Bradt v. Tow ley, 13 Wend. 253, pp. 72,
73.
Brady v. Wilson, 4 Hawks, 94, p. 68.
Brainard t7. Head, 15 La. An. 489, pp.
218, 221.
Brahan v. Ragland, 3 Stewt. 247, p. 286.
Braveboy t7. Cockfleld, 2 McMull 270,
p. 89.
Bray v. Hayne, Hob. 76, p. 75.
Breed t7. Conlev, 14 Iowa, 269, p. 227.'
Brettun t7. Antnony, 103 Mass. 37, p. 66.
Brewster v. Hartley, 37 Cal. 15, p. 115.
17. Sime, 42 Cal. 139, pp. 101,
103, 111, 113, 114.
Brickner i7. Company, 49 N. Y. 672, p.
267.
Bridenbecker v. Lowell, 32 Barb. 17, p.
113.
Bridge t7. Company, 3 Mees. & W. 244,
p. 240.
Briggs t7. Ewart, 51 Mo. 245 ; S. C. 11
Am. R. 445; p. 286.
Briggs' Case. Godb. 157, p. 66.
Brill t7. Flagler, 23 Wend. 354, p. 97.
292
TABLE OF GASES.
Brinkmeyer v. City, 29Ind. 187, pp. 24,
224.
Bristol V, Braidwood, 28 Mich. 191, p.
286.
Brite'v. GUI, 2 Mon. 65; 6 Ibid. laO, p.
70.
Broad v. Ham, 5 Bing. N. C. 722. p. 89.
Broadbent v, Ramsbothaxn, 25 Law J.
K. S. Ex. 115; 11 Ex. 602, 369, pp. 138,
157, 158, 163, 170, 173, 189, 192.
Broder v. Natoma W. & M. Go. 50 Gal.
621, p. 206.
Broderick v. James, 3 Daly, 481, p. 65.
Brodie v. Butledge, 2 Bay, 69, p. 209.
Bromley v. Goxwell, 2 Bos. & P. 438, p.
95.
V. Wallace, 4 Esp. 27, pp. 60,
250.
Bronson v. Southberry, 37 Gonn. J99,
pp. 31, 249.
Brooks v. Buffalo &c. 25 Barb. 600, 313,
p. 243.
V. Hamilton, 15 Minn. 26, p. 281.
Brookes' Gase, Hut. 14, p. 75.
Brook V. Montague, Gro. Jac. 90, pp.
83, 86, 87.
Brookman v. Kothschild, 3 Simmons,
6 Bpg. Gh. 153, p. 108.
Brown v. Best, 1 Wils. 174, pp. 174, 204.
v. Garpenter, 26 Vt. 638, p. 97.
V. Gollins, 53 K. H. 442, p. 29.
V, Gompany, 58 Me. 384, pp. 249,
260, 274.
V. Gompany, 23 Minn. 166, p. 245.
V. Gompany, 3 Hurl. & G. 511,
p. 258.
V. Gompany, 3 Hurl. & N. 511,
p. 261.
V. Gompany, 50 Mo. 461, pp.241,
243.
V. Gopley, 8 Scott N. R. 530, p.
208.
V. Gunamings, 7 Allen, 507, p.
236.
V. Dula, 3 Murph. 574, p. 70.
V. Giles, 1 Gar. & P. 118, p. 119.
V. Howard, 14 Johns, 119, pp.
38,42.
V. Illius, 27 Gonn. 84 ; S. G. 25
Gonn. 583, pp. 153, 161, 185,
189
V. Kendall, 6 Gush. 292, p. 270.
17. Leach, 107 Mass. 364, p. 281.
V. Mason, 40 Vt. 157, p. 220.
V. Maxwell, 6 Hill, 6Se, pp. 239,
267.
V. Piner, 6 Bush, 518, p. 71.
V. Bobins, 4 Hurl. & N. 186, pp.
131, 134.
Brownlow v. Board, 31 Law J. Gom. P.
140, p. 62.
Brough V. Dennison, Goulds. 143, pi.
68, p. 65.
Brouffhton v. Jackson48 Q. B. 383,p. 66.
Brouker's Gase, Godb. 284, p. 76.
Bryant v, Jackson, 6 Humph. 199, p. 29.
Brydon v. Gampbell, 40 Md. 331, p. 226.
Buck V. McGaughtry, 5 T. B. Mon. 221,
p. 281.
Buell V. Ball, 20 Iowa, 282, p. 223.
Bulkeley v. Smith, 2 Duer, 271, p. 89.
BuUatd t7. Harrison, 4 Maule & S. 393,
p. 18.
Bullitt V. Glement, 16 B. Mon. 193, pp.
208, 211.
Bullock V. Babcock, 3 Wend. 391, p. 32.
V. Koon, 9 Gowen, 30, p. 72.
Bundy v. Hart, 46 Mo. 460, p. 66.
Burbank v. Horn, 39 Me. 233, p. 71.
Burder v. Veley, 12 Ad. & E. 247, p. 19.
Burge V. Underwood, 6 Gal. 45, p. 206.
Burgess v. Gray, 1 Gom. B. 678, p. 268.
Burbaus v. Sanf ord, 19 Wend. 417, p. 91.
Burke v. Gompany, 49 Barb. 629, p. 249.
V. Gompany, 34 Gonn. 474, p. 265.
Burlington v. Gilbert, 31 Iowa, 366, p.
Buriiap v. Wright, 14 HI. 301, p. 236.
Bumard v. Haggas, 14 Gom. B. N. 8.
46, p. 31.
Burnett v. New Orleans, 14 La. An. 120,
p. 24.
Bumham v. Stevens, 33 N. H. 247, pp.
210, 211.
Bums 17. Gompany, 101 Mass. 60, p. 248. ^
V, Erben, 40 N. Y. 463, p. 66.
Burroughs v. Gompany, 15 Gonn. 124,
pp.21, 238.
Burton v. Fulton, 49 Pa. 151,pp. 215, 218.
V. Stewart, 3 Wend. 239, p. 115.
Burrt?. Mills, 21 Wend. 290, p. 197.
Bury V. Ghappell, Goldsb. 135, p. 76.
Buron r. Denman, 2 Ex. 167, p. 229.
Bush V. Johnston, 23 Pa. 209, p. 244.
V. Pettibone, 4 Gomst. 300, p. 32.
V. Smith, T. Jpnes, 167, p. 68.
t7. Steinman, 1 Bos. & P. 404, pp.
267,268.
Busst V. Gibbons, 30 Law J. Ex. 75, p.
89.
Butcher v. Butcher, 7 Bam. & G. 399,
p. 120.
Butler 15. Gams, 37 Wis. 61, p. 286.
V. McLellan. 1 Ware, 219, p. 42.
r. Peck, 16 Ohio, K. S. 334, p. 202.
Butterfield v. Forrester, 11 East, 60, p.
239.
Button 17. Gompany, 18 N. Y. 248, p. 246.
t7. Hayward, 8 Mod. 24, p. 65.
Buzzell V, Gompany, 48 Me. 117, pp.
247, 248, 262.
Byers v. Daugherty, 40 Ind. 198, p. 286.
Byne v. Moore, 5 Taunt. 187, pp. 89, 90.
Bynlon v. Trotter, Style, 231, p. 66.
Byme t7. Stout, 15 111. 180, p. 96.
C.
Gable v. Gooper, 15 Johns. 157, p. 207.
Gabot V. Ghristie, 42 Vt. 121, p. 285.
Gahill V. Eastman, 18 Minn. 324, pp.
31, 134.
Galder t7. Halkett, 3 Moore P. G. G. 28,
p. 208.
Galdwell v. Brown, 63 Pa. 453, pp. 39,
261,264.
Galedonian Gompany v. Ogilyy, 2 Macq.
246, pp. 62, 63.
Galiford v. Knight, Gro. Jac. 514, p. 76.
TABLE OF GASES.
298
Callahan v. Bean. 8 Allen, 401, p. 200.
V. Warne, 40 Mo. 131, pp. 273,
276.
Callender v. Marsh, 1 Pick. 418, pp. 21,
11.
Campbell v. Fleming, 1 Ad. & E. 40,
pp. 115. 278.
r. Rogers, 2 Handy, 110, p.
34.
V. Spottlflwood, 3 Heat &
Smith. 770, p. 81.
Camp V. Martin, 23 Conn. 89, p. 76.
V, Mosely, 2 Fla. 171. p. 215.
Canada r. Southwick, 16 Pick. 560, p.
217.
Canefox v. Crenshaw, 24 Mo. 199, p. 97.
Cannon v. Phillips, 2 Sneed. 185, p. 72.
Cardinal v. Smith, 109 Mass. 158, p. 89.
Carl P. Ayers, 53 K £. 14, p. 89.
Carle's Case, Oodb. 181. p. 65.
Carlock t». Spencer, 7 Ark. 12, p. 69.
Carmichael v. Shield. 21 Ind. 66, p. 70.
Carratt o. Morley, 1 Q. B. 18, p. 208.
Carrig v. Dee, 14 Gray, 583, p. 61.
Carry v. Company, 1 Cash. 475. p. 32.
Carr v, Clarke, 2 Chit. 2(K), p. 45.
1% Hood. 1 Camp. 355. p. 79.
Caralake v. Mapledoram, 2 T. K. 473, p.
76.
Garstairs v, Taylor, Law R. 6 Ex.'217,
pp. 27, 143.
Carter v. Town, 108 Mass. 507, p. 272.
V. Walker, 2 Rich. 40, p. 116.
Case r. Bonghton, 11 Wend. lUi, p. 280.
V. Buckley. 15 Wend. 327, p. 67.
Cassabilly V. Brit. 1 Sid. 16, p. 66.
Castle r. Duryee. 2 Keyes, 169, p. 269.
Castleman v. Hobbs, Cro. Eliz. 428, p.
66.
Caswell V. Wo»th, 5 El. &; B. 549, p. 239.
Cave 17. Mountain, 1 Alan. & 6. 25^, p.
209.
Central &c. r. Van Horn, 38 N. Y. 133,
p. 243.
Chamberlain r. Bell. 7 Cal. 2Si2, p. 227
Chambers v. Bedell, 2 Watts & S. 226,
p. 118.
r. CaulHeld. 6 East, 244. p.
49.
V, White, 2 Jones(N.C.)383,
p. 67.
Champaign &c. v. Smith, 7 Ohio N. S.
42, pp. 215, 216.
Chandler t. Rowland, 7 Gray, ."548, p.
191.
Chapman v. Company, 55 N. Y. 679, pp.
•257. 2<51.
V. Company, 19 N. Y. 341, p.
260.
V. Rose, 56 N. Y. 137 ; S. C. 15
Am. K. 401, p. 285.
f . Pickersgill, 2 Wils. 145, p.
91.
Charless r. Rankin, 22 Mo. 38S,,p. 131.
Chase v. Company. 24 Barb. 273, p. 240.
V. Fish. 16 Me. i;J2, p. 55.
V. IngallH, 97 l^lass. 524. p. 220.
V, Jeflferson, I Houst. 257, p. 120.
V. N. Y. &c. 24 liarb. 273, p. 24<i.
V. Silverstone, 62 Me. 175, p. 154.
Chasemore r. Richards, 7 H. L. Cas.
349; 2 Hurl. & N. 168, pp. 12, 158, 160,
161. 162, 184, 185, 188.
Chatfleld v. Wilson, 31 Vt. 368, p. 193.
V. Wilson, 28 Vt. 49; 8. C.
31 Ibid. 368, pp 161, 162,
184, 188. 195, 196.
Chegary v. Jenkins. 6 N. Y. 376, p. 66»
Cherry v. Stein, 11 Md. 1, p. GO.
Chicago &c. v. Damerell, 81 111. 461, p.
246.
Chicago V. Dermody, 61 111. 4.^, p. 26t
Chicago &o. v. Dickson. 63 111. 151; S.
C.14Am.R.114,p.266.
17. Donahue, 75 111. 106, pp.
242 248.
Chicago Co. v. George, 19 Dl. 510, p.
238.
Chicago & Alton R. R. Co. 17. Gregory,
58 in. 226. pp. 30, 250.
Chicago V. Harney, 28 Ind. 28, p. 264.
Chicago &c. v. Harwood, 80 111. 88, p.
245.
V. Jackson, 56 HI. 492, p.
257.
Chicago Company v. Murphy, 53 Dl.
336, pp. 267, 261.
Chicago V. Robbins, 2 Black. 418, p.
268.
V. Starr, 42 III. 174, p. 260.
Chicago &c. v. Van Patten, 64 111. 510,
p. 272.
Child V. Boston. 4 Allen, 41, p. 197.
Childers v. Wooler, 29 Law J. Q. B.
129; 2 El. & B. 287, pp. 279, 280, 286.
Choune V. Baylis, 31 I^w J. Ch. 757, p.
20.
Christie v. Cowell, Peake, 4, p. 69.
Christy v. Cummins, 3 McLean, 386, p.
116.
Chubb V. Flannagan, 6 Car. & P. 431,
p. 73.
Cliune 17. Pyot, 1 Rolle R. 237, p. 55.
Churchhill v. Cburchhill, 12 Vt. 661, p.
221.
V. Siggers, 3 El. & B. 929, p.
215.
Cincinnati Co. r. Rogers, 24 Ired. 103,
p. 247.
Cincinnati Gazette Co. v Timberlake,
10 Ohio St. 548, pp. 80, 88.
Citizens' Bank r. First Na'tl. Bank L.
R. 6 H. L, ,'»2, p. 279.
City r. Gilmer. 3;i Ala. 116, p. 13.
t;. Ruby, 8 Minn. 169, p. 31.
t;. Vanacker. Carth. 483,- p. 29.
Clark 17. Couroe, 38 Vt. 469, p. 161.
V. Foot, 8 Johns. 421. p. 14.
17. Foxcroft, 6 Greenl. 296,pp. 217,
218.
f7. Jjebauon, (>3 Me. 393, p. 234.
t7. Miller, 54 N. Y. 528, p. 224.
17. Willett, :J5 Cal. 5:*4, p. 136.
Clarke v. Company, 41 Pa. St. 147, p.
22.
V. Johnson, 54 111. 296, p. 286.
V. Spicer, 6 Kan. 440. p. 211.
17. Taylor, 4 Ring. N. C. 654, p. 77.
Clegg r. Deardon. 12 Q. B. 57(>; 17 Law
J. N. S. Q. B. 23;^, p. 140.
_t . _
294
TABLs or CASSa.
Gleghom v. Company, 66 N. Y. 44, p.
257.
Cleyeland v. Company, 5 C. £. Gtomi,
201, p 60.
V. Company, 42 Vt. 44d, pp.
233,236.
Cl6Teland v. Bowan, 66 Pa. 393. p. 245.
Clevaland R. B. Co. v. Keary, 3 Ohio,
201, p. 262.
Clinton v. Myers, 46 K. Y. 511, p. 196.
Cloftsen V. Staples, 42 Vt. 209, p. 90.
Clothier v. Webster, 12 Com. B. N. S.
790, p. 63.
Clutt«rbuck v. ChafPen, 1 Stark. 471,
p. 73.
Cochran v. Tober, 14 Minn. 386» pp. 61,
66. .
Cock V. Weatberby, 13 Miss. 333, p. 66.
Cockroft V. Smith, 11 Mod. 43, p. 37.
Colbert v. Caldwell, 3 Grant, 181, p. 71.
Cole t;. Maunder, 2 BoUes Abr. 666, p.
120.
V. Maundy, Yin. Abr. Trespass,
616, P. 118.
Coleman v. Chadwick, 76 Fa. 2iS, 5B1«
p. 130.
Cole Silver M. Co. tt. Virginia Water
Co. 1 8a wy. 470, pp. 154. 177.
Coles V. Ketle, Cro. Jac. 204, p. 75.
Collins V. Evans, 6 Q. B. 8S6, pp. Sn,
280, 285.
V. Hayte, 60111. 337, p. 91.
V. MaJin, W. Jones, 304, p. 74.
0. Rennison, Say. 188, p. 37.
Colt V. Lewiston, 36 N. Y. 217, p. 197.
Columbus Company v. Arnold, 31 Ind.
174, pp. 257, 261.
Columbus Gas Co. v. Freeland, 12 Ohio
St. 382, p. 58.
Combs V. Company, 102 Mass. 672; S.
C. 3 Am. R. 606, pp. 252, 253.
Commercial Bk. v. Kortrif^ht, 22 Wend.
361, p. 113.
V. Wilkins, 9 Greenl.
28, p. 217.
V. Vamnm, 49 N. Y.
269, P. 229.
Commissioners v. Babcock, 6 Oreg. 472,
p. 227.
V. Withers, 29 Miss. 21,
p. 11.
Commonwealth v. Alger, 7 Cush. 63, p.
V. Culver, 1 Pa. L. J.
R. 3(il, p. 83.
V. Beed, 34 Ta. 276, p.
62.
V. Tewksbury, 11 Met.
65. p. 197.
Conger v. Weaver, 6 Cal. 648, p. 206.
Conklin v. Thompson, 29 Barb. 218, p. 32.
Connecticut Co. v. N. Y. Co. 26 Conn.
271, p. 34.
Conner v. Allen, 33 Ala. 616, p. 95.
V. CoAn, 22 N. H. 538, p. 98.
V. Henderson, 15 Mass. 321; 5
Mass. 314, p. 116.
Connolly v. Davidson, 16 Minn. 519, p.
268, 2Bo.
Conwell V. Voorhies, 13 01iio» 588» pi 228.
Cook V. Association, 5 Bl. C. C. 303; p.
n.
V. Beal, 1 Ld. Rays. 177, p. 37.
V. Company, 1 DenloL^n, p. 274.
V. Palmer, 6 Bam. A C. 738, p. S2ft.
Cooke V. Waring, 32 Law J. Ex. 202, p.
237.
Coombs V. Company, 102 Mass. 2^ p.
262.
V. New Bedford Cordage Co.
102 Mass. 672, p. 30.
Coon V. The Syracuse &o. 1 Sold. 492,
p. 263.
17. Company, 5 N. Y. 492, p. 2B7.
Cooper V, Barber, 6 Taunt. 99, p. 181.
V. Company, 44 Iowa, 134, p.2ft8L
V. Lovering, 106 Mass. 79, p. 2T8.
V. McJunkln, 4 Ind. 290. p. 3&
V. Randall, 58 111. 21* p. 6».
V. Smith, Cro. Jac. 423, p. €9l
V. Utterback, 37 Md. 282, p. 9a
Copeland «. Company, 2 Met. 440, p. 2SBL
Copp V. Company, 6 Vroom, 17, p. 39.
CorbT V. WeddW, m Mo. 46S, p. 286w
Oomfoot «. Fowka. 6 Meea. ft W. 3SS^
P.280L
Coqpore «. OgdeB, 49M. Y. SSB^pp. 98Sv
Cotes V. Michill, 8 Lev. 20^ p. 221.
Cotterell v. Jones, 11 Cool B« 719; Bob.
206. p. 21A.
Coughtry v. Compaay, 86 K. Y. IM, p.
Counter v. Couoh, 8 Alien* 496, |^ 2nk
Countess of Rutland's Case, 6 RefK 54a,
p. 221.
County Comniasloiken «. Dvckekl, 20
Md. 468, p. ttl.
County Commlssionen v. Oibsoiiy 36
Md. 229^ p. 229. g
Coupey V. Henley, 2 Bsp. 510^ p^ 6^
Courtwright v. »Mr River Go. 80 Cal.
578^ p. m
Cowles V. Dunbar, 2 Car. ft P. 98T, p. fl8w
Cox 9. Burbridga, 13 Com. Bw H. & 418^
pp. 43. 287.
V. TaVlor*s Adm. 10 B. Mon. IT, pw
Craig V. Burnett, 32 Ala. 728^ jx 211.
V. Company, 118 Mass. 431^ 915^
V. Hobbs, 44 Ind. 363, pp. 288; 281
Crawford v. DeUiware, 7 Ohio St. 4B8i
p. 12.
Creswell v. Ventr.ve% SljI^i 91, p. 88L
Crissey v. Company, 76 Pa. 88, p. 219.
Crocker v. Company, 24 Corns. SMI, p.
266.
v. Crocker, 31 K. Y. 807, p. 118L
Crockett v. Beatty. 8 HuBU>h. iOi, p. 91
Croford v. Bliss, 2 Butefc. 1«K p. 72.
Crompton v. Lea, Law R. 19 £q. 116; 11
Moak. 719, p. 138.
Crooker v. Brjgg, 10 Wead. 280, pp. 198c
196.
Crosb^ 17. I^ng, 12 East, 4B8» p. 20.
Cross V. Outhray, 2 Root. 98l p. 38.
Crump V. Lambert, L. R. 3 Xq. 408; p.
58.
Cuff V. Newark Company, 86 K. J. L.
17, p. 230.
TABLB OF CASES.
295
Cail o. Newark S& K. Y. B. B. Go.» 6
Vroon, 17, p. 288.
Oanningham v. Lynesa, 22 M7\b. 245, p.
244*
V. Mitchell) 67 Pa. 78, p.
218.
G^nis V. Ayrault, 47*N. Y. 73, p. 138.
V. Lyman, 24 Vt. 338, p. 227.
CttBhman r. Byan, 1 Story, 91, p. 42.
D.
Dabbome v. Martin. Popli. 177, p. 66.
Bacey v. Clinch, 1 Sid. 53. p. 68.
Dain v. Wycoff, 7 N. Y. 191, p. 48.
Daley v. Norwich &c. 26 Conn. 591, p.
243.
V. R. B. Co. 26 Conn. 59, p. 30.
Dalyel v. Tyrer, El. B. & B. 899, p. 269.
DanielA v. Fielding, 16 Mees. & W. 200,
p. 215.
I>anTiUe &c. v. Stewart, 2 Met. Ky.
119, p. 250.
Darling v. Banks. 14 Til. 46, p. 72.
David V. Park, 103 Mass. 501, p. 282.
DaTiea v. Jenkins, 11 Mees. & W. 755,
pp. 4, 215.
V. Mann, 10 Mees. & W. 545, p.
243.
V. Williams, 10 Q. B. 725, p. 47.
DaTison «. Dnncan, 7 £1. & B. 229, p.
80.
DaTia v. Company, 20 Mich. 106, pp.
249, 256. 257, 261.
V. BTton, 7 Bing. 154, p. 98. .
V. Fuih, 1 Greene, 407, pp. 246,
•. Oetohell, 60 Me. 602, p. 194.
«. Ockham. Style, 227. 246, p. 65.
V. Beev^ 5 Ir. Com. L. 79. p. 80.
9. RusselU 5 Bing. 364, p. 56.
9. Winslow, 51 Me. 264, p. 194.
r. Whitridge, 2 Strob. 232, p. 37.
Dawkina v. Lord Planlet. L. R. 5 Q. B.
94; S. C. 9 Best. & S. 768,
p. 229.
V. Lord Rokeby, 4 Fost. & F.
806, p. 229.
Daws V. Hawkins, 8 Com. B. N. S. 848,
pp. 13, 18.
Dawaon, In re, Yelv. 5, p. 66.
Day V. Brean, 2 Mood. & R. 64, p. 73.
V. Robia^n. 1 Ad. & B. 554, p. 66.
Deal V. Harris, 8 Md. 40, p. 209.
Dean v. Peal, 5 East, 45. n. 45.
Dean of St. Asaph, Trial of, 21 How.
St. Tr. 847 p. 87.
DeForrest v! Wright, 2 Mich. 3fi8,p. 267.
Degg 9. Company. 1 Hurl. & N. 773; 26
Law J. Ex. 173, p. 265.
V. Midland &c., 3 Jur. N. S. 395,
p. 2(K{.
Delaware V. Commonwealth, 60 Pa. 367,
p. 62.
Delegal v. Highley. 3 Bing. N. C. 950,
p. 89.
Delhi 9. Yonmans. 50 Barb. 316; S. C.
45 N. Y. 382, pp. 13, 183, 192, 193.
Demarest 9. Harring, 6 Cow. 70, p. 75.
De Medina 9. Grove, 10 Q. B. 168, p. 215.
De Moranda 9. Dunkin, 4 T. R. 1^ p.
228.
Denn v. Diamond, 4 Bam. Sc Or. 345, p.
19.
Dennis v. Larkin, 19 Iowa, 494, p. 235.
Desmond 9. Brown, 33 Iowa, 13, pp. 65,
70.
Devitt 9. Company, 50 Mo. 302, p. 274.
Dews 9. Riley, 11 Com. B. 434, p. 220.
Dexter 9. Prov. Aquednct Co. 1 Story,
387, pp. 184-^, 190.
Dexter 9. Spear, 4 Mason, 115, p. 73.
9. Taber. 12 Johns. 239. p. 71.
Deyo 9. Van Valkenbnrgh, 5 Hill, 243,
p. 54.
IMcas 9. Lord Brougham, 6 Car. & P.
249, p. 208.
Dicken 9. Shepherd, 22 Md. 399, p. 74.
Dickenson v. Watson, 2 Jones, 205, p.
269.
Dickey 9. Andross, 32 Vt. 55, p. 66.
V. Company, 43 Me. 492, p. 245.
Dickinson v. Barber, 9 Mass. 225, p. 29.
9. City, 7 Allen, 19, p. 197.
Dickinson 9. Grand Junction Cana^
Company, 9 Eng. L. & Eq. 521; 7
Ex. 299, pp. 150, 152, 157, 159, 164,
166, 169, 171, 172, 173, 174, 184, 186,
190.
Dickinson 9. Worcester, 7 Allen, 19,
p. 138
Dickson 9. McCoy, 39 N. Y. 400, p. 237.
Dietz V. Langfltt, 63 Pa. 234, p. 89.
Dilling 9. Murray, 6 Ind. 324, pp. 193,
194.
Dix 9. Brown, 41 Miss. 131, p. 275.
Dixon 9. Bell, 5 Moore & S. 198, pp.
29,269.
Dixon 9. Stewart, 33 Iowa, 125, p. 71.
Dobbs 9. Justices, 17 Ga. 624, p. 217.
Dodd 9. Holme. 1 Ad. & E. 49:), p. 135.
Dodgon 9. Mock, 4 Dev. & B. 146, p. 97.
Dole 9. Erskine, 35 N. H. 503, p. 37.
Dolph 9. Ferris, 7 Watts & S. 367, p.
43.
Dominick 9. Backer, 3 Barb. 17, p. 216.
Donald.son 9. Company, 18 Iowa, 280,
pp. 33, 241.
Donahoe 9. Richards, 38 Me. 376, pp.
210, 222.
9. Shed, 8 Met. 326, pp. 221,
216.
Donham 9. Wild, 19 Pick. 520, p. 267.
Donnell 9. Jones, 13 Ala. 490, p. 236.
Donovan v. City, 11 La. An. 711, p. 12.
Dorman 9. Jacksonville, 13 Fla. 538,
p. 11.
Dorr 9. Mickley, 16 Minn. 20, p. 228.
Dorwin 9. Potter, 5 Den. 306, p. 247.
Dos well 9. Impey, 1 Bam. & C. 169, p.
211.
Douglas 9. Stevens, 18 Mo. 362, p. 246.
Douglass 9. Matting. 29 Iowa, 498 ; S.
C. 4 Am R. 238, p. 285.
Doupe 9. Genin, 45 N. Y. 119, pp. 27,
143.
Dowd 9. Chicopee. 116 Mass. 93, p. 249.
Dowell 9. General &c. 5 £1. ft B. 194,
p. 244.
296
TABLE OF CASES.
Downing r. Herrick, 47 Me. 462, pp.
209, 210.
Drake v. Hudson B. R. Co. 7 Barb. 608,
p. 8.
V. Mount, 33 N. J. L. 441, p. 241.
V. Wells, 11 Allen, 141, p. 117.
Drew V. Company, 26 N. Y. 49, p. 33.
Duberley v. Guning, 4 T. R. 651, p. 60.
Du Boulay r. Du Boulay, L. R. 2 P. C.
441, p. 20.
Dudden v. Guardians, 38 Eng. L. &
£q. 626, p. IGl.
Duddree v. Guardians, 1 Hurl. & N.
627, p. 185.
Dudley v. Robertson. 2 Ired. 141, p. 65.
Dufort V. Abadie, 23 La. An. 280, p.
247.
Dugdale v. Robertson, 3 Kay & J. 695,
pp. 122, 128.
Duggins r. Watson, 15 Ark. 118, p. 239.
Duke c. Elgin, 7 Eng. L. & Eq. 39.p. 202.
Dumont v. Kellogg, 29 Mich. 420, pp.
194, 196.
Duncan v. Bancroft, 110 Mass. 267, p.
» 205.
V. Findlater, 6 Clark & F. 908,
pp. 62, 63.
V. Randall, Het. 32, p. 196.
Dunham v. Powers, 42 Vt. 1, pp. 78, 79.
Dunlap V. Knapp, 14 Ohio N. S. 64, p.
228.
V. Snyder, 17 Barb. 661, p. 97.
Dunnell v. Fiske, 11 Met. 651, p. 70.
Dyer v. Talcott, 16 111. 300. p. 245.
Dynen r. T^ach, ») Law J. Ex. 221; S.
C. 40 Eng. L. & Eq. 491, pp. 261, 262,
263,255.
Dynes v. Hoover, 20 How. 65, pp. 215,
220.
E.
Eadon v. Jeflfcock, 7 Law R. Ex. 379;
3 Moak Eng. R. 468, p. 128.
Eager v. Grimwood, 1 Ex. 61, p. 47.
Earl V. De Hart, 1 Beasl. 280, p. 202.
Earl of Glasgow v. llurlet Alum Co.
8 Eng. Law & Eq. 13, p. 126.
Eckhart v. Wilson, 10 Serg. & R. 44,
p. 67.
Eden v. Company, 14 B. Mon. 204, pp.
32 33.
Edick V. Crim, 10 Barb. 446, p. 280.
Edsall r. Brooks, 17 Abb. Pr. 227: 26
How. Pr. 4'i(), p. 8«.
V. Russell, 4 Maen. & G. 1090,
p. 76.
Edwards v. Howell, 10 Ired. 211, p. 74.
V. Wooten, 12 Co. 35, p. ♦i6.
Eglinton v. Annsell, Godb. 88, p. 76.
Eleanor, The, 2 Wheat. 368, p. 8.
Ellington v. Ellington, 47 Miss, 329, pp.
44 48.
Elliott V. Company, 10 Cush. 191, pp.
193. 196.
V, N. E. R. R. Co. 10 H. L. Cas.
333; 32 Law J. Ch. 402; 2
De Gex F. & J. 423; 30 Law
J. Ch. 160; 1 Johns. & H.
145, p. 133.
Elliottsoo V. Feetham, 2 Bing. (K. C.)
134 P. 145
Ellis V Andrews, 56 N. T. 83; S. C. 15
Am. R. 379, pp. 285, 278.
V. City, 29 Iowa, 22», p. U.
V. Duncan, 21 Barb. 230, pp. 152,
161. 177, 184, 186, 187, 189.
V. Schmoeck, 6 Bing. 621, p. 116.
o. Sheffield Gas Co. 2 El. & B. 767.
p. 269.
Ely v. Stuart, 2 Md. 406, p. 281.
V. Thompson, 3 Marsn, 76, p. 209.
Embrey t7. Owen, 6 Ex. 353, pp. 16, 163,
174, 193, 195.
Emery v. Lowell, 104 Mass. 13, p. 197.
V. Lowell, 109 Mass. 191, p. 69.
Emmerling r. Graham, 14 La. An. 389,
p. 229.
England v. Cowley, Law R. 8 Ex. 126,
p. 5)4.
Ennor r. Barwell, 3 L. T. X. S. 170, p.
132.
Entick V. Carrington, 19 How. St. Tr.
106(>, p. 19.
Erd r. St. Paul, 22 Minn. 443, p. 243.
Erskine v. Hohnbach, 14 Wall. 613, p.
218.
Esmond v. Chew, 16 Cal. 137, p. 142.
Evans v. Watson, 66 Pa. 54, p. 16.
Evansville &c. v. Baum, 26 Ind. 70, p.
266.
Everett v. Company, 23 Cal. 225, pp.
139, 143.
Evertson v. Mills, 6 Johns. 138, p. 280.
Ewart V. Jones, 14 Mees. & W. 774, p.
216.
Eyre v. Dunsford, 1 East, 329, p. 10.
P.
Fahn r. Reichart, 8 Wis. 266, p. 3.
Fairbanks v. Kerr, 70 Pa. 86, p. 230.
Fairchild v. Keith, 29 Ohio, (N. S.) 156,
p. 219.
Fairman v. Ives, 5 Bam. & Aid. 644,
p. 81.
Falkner i.'. Cooper, Cart. 55, p. 67.
Faribault v. Sater, 13 Minn. 223, p. 281.
Fariey v. Danks, 4 El. & B. 493, p. 91.
Farns worth v. Storrs, 6 Cush. 412, p. 79.
Farrand v. Marshall, 21 Barb. 407; 19
Barb. 380, pp. 131, 132,
Farrant v. Barnes, 11 Com. B. K. S.
663; 31 Law .1. Com. P. 137, p. 2«)-
Farwell v. Boston & Worcester Rail-
road Corporation, 4 Met. 49, pp. 266,
267, 268, 261.
Farwell v. Company, 3 Macq. 316, p.
. 262.
Fatman v. Ix)bach, 1 Duer, 354, p. 113.
Fayette v. Bush, 19 Ind. 326, p. 12.
Fay V. Whitman, 100 Mass. 76, p. 69.
Felch V. Allen, 98 Mass. 572, p. 264.
Feltham v. England, Law R. 2 Q. B.
3;^, p. 25(5. 2H1, 262.
Fent V. Toledo &c. Company, 69 111.
349, p. 2313.
Fenton t*. Company, 8 Ad. & B. 835,
pp. 268, 269.
TABLE OF CASES.
297
Ferguson v. Kinnoal, 9 Clark & F. 251,
pp. 200, 219.
Fernlev v. Worthington, 1 Scott, N. R.
432, p. 209.
Femster v. Moyer, 3 Watts & S. 416,
p. 48.
Fero V. Company, 22 N. Y. 209, pp. 286,
23S.
Ferriter v. Tyler. 48 Vt. 444; 21 Am. R.
133, p. 210.
Field V. Company, 32 N. Y. 339, pp. 232,
235 238.
Field V. City. 39 Iowa, 575, p. 13.
Fifield V. Company, 42 K. H. 225, p.
248.
Fifty Associates v. Tudor, 6 Gray, 259^
pp. 60, 61.
4ndlaY v.
Findlay v. Bear. 8 Serg. & R. 581, p. 66.
Firmstone r. Wheeley, 2 Dowl. & L.
203; 13 Law J. K. S. Ex. 361, p. 140.
First Baptist Church v. Company, 5
Barb. 79, p. 60.
Fish V, Cleland. 33 111. 238, p. 285.
Fisher v. Bridges, 4 Blatchf . 618, p. 37.
V. Bristow, 1 Doug. 215, p. 80.
V. Clark, 41 Barb. 329, pp. 4, 237.
Fitzgerald v. Northcote. 4 Fost. & F.
656, p. 38.
Fitzjohn v. McKidder, 2 L. T. N. S. 374,
p. 236.
Fitzsimmons v. Cutler, 1 Aik. 33, p. 69.
Flagg V. Worcester, 13 Gray, 601, pp.
13, 138, 197.
Flemming v. Ball, 1 Bay, 3, p. 42.
Fletcher v. Company, 64 Mo. 484, p. 245.
V. Randell, Anth. 196, p. 44.
V. Rylands, Law K. 3 H. L.
330; S. C. 3 Eng. & Ir.
Appeal Cases, 330; 35 Law
J. N. S. Ex. 154; 3 Hurl.
& C. 773; 34 I^w J. Ex.
117; Law B. 1 Ex.265, p.
137.
Fleytas v. Company, 18 La. An. 339, p.
239.
Flight V. Leman, 4 Q. B. 883, p. 90.
Flike V. Company, 53 N. Y. 649, p. 257.
Flint V. Pike, 4 Barn. & C. 478, pp. 80,
86.
Flower v. Adam, 2 Taunt. 314, pp. 242,
246.
. V. Company, 09 Pa. 210, p. 265.
Floyd V. Barker, 12 Co. 25, pp. 210, 213.
Foot V. Brown, 8 dohns. 64. p. 76.
Forbes v. Parsons, Crabbe C. C. 283, p.
42.
Force v, Warren, 15 Com. B. N. S. 808,
p. 65.
Ford V. Company, 110 Ma-ss. 240; S. C.
14 Am. R. 598, pp. 254, 266,
261.
V. Hopkins, 1 Salk. 283. p. 106.
V. Monroe, 20 Wend. 210, p. 33.
Forks Township v. King, 84 Pa. 230, p.
243.
Forsyth v. Hooper, 11 Allen, 419, pp.
2b%265.
Fortman v. Rottier, 8 Ohio N. S. 548, p.
91.
Fortner r. Flamagan, 3 Port. 257, p. 221.
Fort Wayne &;c. v. Gildersleeve, 33
Mich. 133, pp. 253, 254.
Forward v. Adams, 7 Wend. 204, p. 74.
Foster t;. Browning, Cro. Jac. 688, p. 68.
V. McKinnon, Law R. 4 C. P.
704 P 286.
Fos8 u. Hildretii, 10 Allen. 76, pp. 76, 77,
Fouville V. McNease, Dudley, 303, p. 73.
Fowler r. Hollins, X^w R. 7 Q. B. 616,
p. 94.
Fox V. Broderick, 14 Ir. C.L. 453, p. 73.
Francis v. Schoelkoph, 53 N. Y. 152, p.
59.
Frankfort Company v. Philadelphia
Company, 54 Pa. 345, p. 238.
Franklin r. Smith, 21 Wend. 623, p. 229.
Fraser v. Freeman, 43 JJ. Y. 566; S. C.
3 Am. B. 740, p. 266.
Frasier v. Brown, 12 Ohio, 294, pp. 161,
177, 183, 189.
Fray v. Blackburn, 3 Best & Smith. 576,
p. 214.
Frazer v. Company, 38 Pa. 104. pp. 248,
252. 257.
V. Berkley, 7 Car. & P. 621, p. 15.
Freeh r. Company. 39 Md. 574, p. 245.
Freeman v. Cornwall, 10 Johns. 470, p.
210.
Freemantle v. Company, 100 E. C. L.
88, p. 236.
Freeport i?. labell, 83 III. 440, p. 224.
V. Marks, 59 Pa. 263, p. 223.
Friend r. Hamill, 34 Md. 2<.»8. p. 211.
Frierson v. Hewitt, 2 Hill, (S. C.) 499,
p. 89.
Frith V. The Elizabeth, Blatchf. & H.
195, p. 42.
Frost r. Beekman. 1 Johns. Ch. 288; S.
C. 18 Johns. 514, p. 226.
Fnllam v. Stearns, 30 Vt. 443, p. 15.
Fullen wider v. Mc Williams, 7 Bush.
389, p. 91.
Fuller V. Colby, 3 Wood. & M. 6, p. 42.
V. Company. 16 Gray, 43, p. 196.
t'. Fenner, 16 Barb. 333, pp. 72,
73.-
Pullman r. Stearns. 30 Vt. 443, p. 220.
Fulton V. Hood, 34 Pa. 365, p. 285.
V. Staats, 41 K. Y. 498, p. 52.
Q.
Gahagan v. Company, 1 Allen, 187, pp.
239 243.
Gahan v. Lafitte, 5 Moore P. C. C. 382,
p. .211.
Galena &c. t^. Dill, 22 HI. 264, p. 245.
Galena Co. v. Vandergrift, 34 Mo. 55,
pp. 273, 275.
Gallagher v. Pifer, 16 Com. B. N. S.
669, p. 2(31.
Gallagher v. Piper, 33 Law J. Com. P.
, 329, p. 262.
Gallwey v. Marshall, 9 Ex. 294, pp. 74,
75.
Gamble v, Jenny. 2 Keb. 494, p. 66.
Gaudy v. Company, 30 Iowa, 420, p. 238.
Gannon v. Company, 112 Mass. 234, p.
262.
298
TABLE OF CASE9.
Gannon v. Hargadon, 10 Allen, 106, p.
138.
Garland v, Carlisle, 2 Cromp. & M. 77;
8. C. 4 Clark & F. 701, p. 17.
Garlingbouse v. Jacobs, 29 K. Y. 297,
p. 24.
Gannon v. Bangor. 38 Me. 443, p. 243.
Gamett v. Ferrand, 6 Bain. & C. 611,
pp. 208, 209.
Garr v. Selden, 4 N. Y. 91, pp. 78, 83, 84,
87.
Garrett v. R. R. 6 Gray, 64, p. 239.
Gautret v. Egerton, Law Rep. 2 C. P.
371, p. 23.
Gavel V. Martyn, 19 Com. B. N. S. 732,
p. 12.
Gay V. Winter. 34 Cal. 153. p. 239.
Gaylor v. Hunt» 23 Ohio N. 8. 255, p.
219.
Gellett V. Mason, 7 Johns. 16, p. 12.
George, the Count Joannes t;. Burt, 6
Allen, 336, p. 76.
George 9. Van Horn, 9 Barb. 523, p. 44.
Gerety v. Company, 81 Pa. 274, p. 245.
Gerrard v. Davis, 53 Mo. 932^^. 225.
Gerrish v. Company, 30 N. H. 478, pp.
193 195.
9. Clough. 48 N. H. 9, p. 4.
Gibbs V. Linaberry, 22 Mich. 479; & C.
7 Am. R. 675, p. 286.
V. Price. Style, 2:n, p. 74.
Gibbons v. Pepper, 1 Ld. Baym. 38, p.
270.
Gibson v. Company, 63 K. Y. 449; 8. C.
20 Am. R. 552, p. 253.
V. Puchta, 33 Cal. 316, pp. 136.
146. 147.
Gifford V. Carvill, 29 Cal. 589, pp. 115,
116.
Gilbert v. People, 1 Denlo, 41, pp. 83,
84.
Giles V. Simonds. 16 Gray. 441, p. 117.
Gilham v. Company, 49 111. 484, p. 138.
Gillenwaier v. Company. 5 Ind. 340, pp.
268 264.
Gillett i\ Johnson, 30 Conn. 180, pp.
196.202.
Gillshannon «. Stony Brook &c, 10
Cnsh. 228. pp. 228. 266. 267, 263.
Oilman v. Eastern R. R. Co. 10 Allen,
233, pp. 39. 249. 256, 261.
V. Emery. 64 Me. 460, p. 98.
Gilpin V. Howell. 6 Pa. 42, p. 110. .
Glasgow V. Kowse. 43 Mo. 479, p. 218.
Glassey v. Hestonville, 67 Pa. 172, p.
250. :
Godfrey v. Owen. Poph. 148, p. 75.
Godsel V. . Winch, 90, p. H6.
Goetchens v. Matthewson, 61 N. Y. 420,
p. 211.
Goggans v. Monroe, 31 Ga. 331, p. 91.
Gold v. Bobbins, Yel. 145. p. 68.
Good v. French. 115 Mass. 201, p. 89.
Goodale v. Tuttle. 29 N. Y. 466, pp. 13,
184, 189, 192. 201.
Goodenow v. Tappan, 1 Ohio, 60, p. 78.
Goodman r. Taylor, 5 Car. & P. 410, p.
270.
Goodyear v. Railroad. 2 Wall. C. C.
366, p. 26.
Gordon v. Spencer, 3 BUckf. 286, p.
73.
Gore V. Martin, 66 N. C. 371. p. 318.
Gorham v. Gale. 7 Cowen. 739l p. 228.
Gormley v. Sanford. 52 HI. 158, p. 138.
Gorton v, De Angelis, 6 Wend. 418, p.
89.
ft. Frizxel, 20 HI. 191, p. 222.
Gosling V. Veley, 12 Q. B. 407 ; S. C. 4
House of Lords Cas. 727, p. 19.
GoBzler v. Geoigetown, 6 Wheat 583^
p. 12.
Gould v. Booth, 66 N. Y. 62, p. 202.
V. Christianson. Blatchf. & H.
521, p. 42.
If. Company, 13 Gray, 442, pp.
194 191.
V. Oliver, 2 Scott N. R. 257; 4
Bam. ft C. 142, p. 22.
Governor &c. v. Meredith, 4 T. R. 794,
p. 21.
Grace v. Mitchell, 31 Wis. 588, p. 221.
Graham v. Smith, 1 Edm. Sel. Cas. 267,
p. 50.
Grand &c. Company v, Shugar, L. R.
6 Ch. 483. pp. 161. 177.
Grant «. Allen, 41 Conn. 166, p. 188.
V. Bailey. 12 Mod. 440, p. 43L
Graves v. Otis, 2 Hill, 466, pp. 11, 21.
Gray v. Company, 65 N. Y. 561, p. Sia.
V. Parlande. 51 N. Y. 434, p. 44.
V. Harris, 107 Mass. 492, p. 138.
V. Kimbal, 42 Me. 299, p. 215.
9. Pentland, 2 Serg. & R. 23, p. 8L
Grear v, Marshall, 4 Foat. & F. 486, p.
229.
Great N. R. t. Harrison, 10 Ex. 876, p.
239.
Greatrex tn Hayward, 8 Ex. 300; 20
Eng. L. St Eq. 377, pp. 202, 205.
Greely v. Maine Cent R. R. Co. 63 Me.
200, pp. i:)9, 155.
Green v. Hudson River Co. 2 Keyes,
294, p. 31
Green t>. Reading, 9 Watts, 382; 20
How. 148, p. 11.
Greene v. Warner. 3 Keb. 624. p. 67.
Greenland r. Chaplin, 5 Ex. 243, p. 233.
Greenleaf v. Company, 29 Iowa, 14, p.
248.
V. Company, 83 Iowa, 52, p.
248.
V. Francis. 18 Pick. 117, pp.
165, 162. 185, 18&
Gregory v. Brooks, 37 Conn. 365, p. 210.
V, Brown, 4 Bibb, 28^ pp. 208»
211.
V. Harris, 43 Cal. 38, p. 206.
9. Hill, 8 T. R. 399, p. 37.
V. Thomas, 2 Bibb; 286, p. 91.
Griffith's Case. Cro. Ella. 780, p. 67.
Griffiths V. Gidlow. 3 Hurl. & N. 048,
pp. 239, 248, 251, 255.
Griffiths r. Godson, 3 Hen. & M. 313^ p.
262.
Griggs V. Fleckenstein, 14 Mian. 81,
pp. 241, 375.
V. Foot. 4 Allen, 196, p. 11.
Grinnell v. Wells, 7 Man. k 0.1063^
pp. 44, 46, 47.
TABLE OF CASES.
299
Grippen v. Company, 40 N. Y. 31, p.
Grizzle v. Frost, 3 Fost. & F. 622, p. 30.
Gnerln v. Hunt. 8 Minn. 477« p. 21B.
Gaeiit V. Reynolds, 68 HI. 478, p. 131.
Gnildeslew v. Ward, Gro. £li& 225, p.
Tl.
Gttille V. Swan, 19 Jobni. 381, p. 237.
Gnxneth v. Berry, 3 Ler. 166» p. 09.
Guthrie v. Jonea, 108 Mass. 191» p. M.
Gwynn v. Tamer, 18 Iowa, 1, p. 97.
Gyre v. Culver, 47 BarU 089^ P- 30.
HialiiM 9. Roberta, 6 SI. & B.OIft, p. IS.
HaseO V. Groasman, 31 Ind. 223, p. 281.
Hairtemmn v. Bruokhart, 46 Pa. 614,
pp. 104, 161, 184.
Haley «. Company, 21 Iowa, 16, p. 241.
Hall V. Hatnraond, 1 Sid. 104, p. 06.
«. Hettnesley. Cro. £liz. 480» p. 67.
V. Johnson, 8 Hurl. & C. 689, p. 284.
V. Johnton, 34 Law. J. Ex. 222,
pp. 39, 267.
Halls V. Thompson, 1 flmed«»8 & M. 443,
p. 281.
Hamer v. Knowles, 30 Law J. Ex. N.
a 102; Hurl. & N. 464, p. 136.
Hamllburgh v. Shephard, 119 Mass. 30,
p. 89.
Hamilton v. Anderson, 3 Macq. App.
Can. 363, p. 208. ^
tr. McPherson, 28 N. Y. 72,
p. 240.
V. WiiliaflM, 26 Ala. 027, p.
209.
Hammack v. White, ll Com. B. N. 8,
688; 31 Jjaw J. Com. P.
129, pp. 238,
- ll ^ -
Mod. 219, p. 209.
Hanoe v. Company, 26 K. Y. 428, P^240.
Handcock v. Baker, 2 Boa» Sc P. 200, p.
66.
Hando v. Railroad, L. R 2 Q. B. 480ii,
p. 268.
Hannah v. Rust, 21 Wend. 149, p. 37.
HanoTer R. R. Co. v. Coyte, 66 Fa. 886^
p. 274.
Hanrathy v. Company, 46 Md. 280, p.
262.
Hanson v. McCue, 42 CaL 308^ pp. 162,
177.
Harbert v, Angell, Hntt. 113, p. 66.
Hard v. Vermont *c. 32 Vt. 480, pp.
248,281,288.
Hardenbuzgh «. Baoon, 38 Cal. 866, p.
100.
Hare v. Miller. 3 Leon. 138, p. 79.
Harlan v. St. Louis fto. 66 Mo. 22, p. 243.
Harner s. Company, 47 Ma 067, pp. 261,
Hammond tr. Howell, 1 Mod. 184; 2
Haninffton v. Fuller, 18 Me. 277, p. 228.
*- _ - I, } -
Cord, 400, p. 210.
Hsnlagton v. Commissioners, 3 Mc-
HairiagtoB v. People, 6-Barb. 607, p. 37.
Hairia v. Butler, 2 Meea. & W. 639, p.
46*
Harris V. Bnrley, 8 N. H. 216, p. 74.
9. Korthem Company, 20 N. Y.
386. p. 348.
V. Ryding, 6 Mees. & W. 69; 8.
C. 8L. J. N. 8. Ex. 181, pp.
132, 128, 126.
V, Woody, 9 Mo. 113, pp. 60, 73.
Harrison o. Berkley, 1 Strob. 648^ p.
347.
V. Bush, 6 El. & B. 349, pp. 78»
87.
V. Stratton, 4 Esp. 218, p. 74.
«• Thomborough, 10 Mod.
106« p. 67.
Hart V. Dubois, 20 Wend. 236, p. 221.
V. Company, 13 Met. 99, pp. 232,
238.
Hartzall v. Sill, 12 Pa. 348, p. 194.
Hartwell v. Armstrong, 19 Barb. 166,
p. 62.
Harvey v. Dunlop, Hill & D. 198, pp.
3, 170.
V. Martin, T. Raym. 78^ p. 76.
V. Watson, 7 Man. & G. 044, p.
49.
Harwood v. Bruter, 32 Vt. 724, p. 184.
V. Tompkins, 4 Zab.426, p. 4.
Hastings v. Lusk, 22 Wend. 410, pp. 77,
83,84.
Haasa v. Junger, 16 Wis. 698, p. 246.
Hatch V. Company, 26 Vt. 49, p. 21.
V. Ijane, 106 Mass. 394, p. 81.
V. Vermont, 2 Wms. 142, p. 62.
Hatfield v. Roper, 21 Wend. 616, pp.
31. 342, .249. 260.
Hathaway r. Hinton, 1 Jones N. C.
243^ p. 229.
Havers v. Erie Co. 41 N. Y. 296, p. 274.
Haverstick i*. Sipe^ 33 Pa. 368, p. 61.
Hawk V. Ridieway, 33 111. 473, p. 62.
Hawkins v. Hawkins, 60 Gal. 668, p. 282.
Hawley v. Brummagim, 33 Cal. 394, p.
106.
V. Butler, 64 Barb. 490, p. 66.
Hawn V. Smith, 4 R. Men. 386. p. 71.
Hay V. Company, 2 Comst. 159, p. 139.
V. he Neve, 2 Shaw, Scotch Ap-
peals, 395, p. 250.
Hay craft v. Creasy, 2 East, 106, pp.
279. 280, 285.
Hay den t\ Company, 29 Conn. 648, pp.
248, 253, 257, 281.
V. Shed, 11 Mass. 500, p. 91.
Hayes v. Company, 3 Cush. 270, pp.
266, 257, 262, 2H4.
V. Waldron, 44 K. H. 680, p. 194.
Haynes v. Sinclair, 23 Vt. 108, p. 236.
Hays t;. Cohoes Co. 2 N. Y. 159, pp. 129,
146.
Heake v. Moulton, Yel. 90. p. 68.
Hearue r. Company, 60 Cal. 482, p. 243.
Heavilon v. Kramer, 31 Ind. 24, p. 247.
Hedges v. Tagg. 7 Exch. 283, p. 47.
Heermance v. Vemoy, 6 Johns. 6, p.
Xlo.
Heinrichst;. Kerohner, 86 Mo. 378, p. 48.
Heister's Lessee v. Fortner, 2 Bin. 40,
p. 227.
Henderson r. Broombead, 4 Hurl. &
N. 577, p. 78.
800
TABLE OF CASES.
Henry v. Company, 8 Watts. & S. 86,
pp. 11. 13, 21.
Hem t7. Nichols, 1 Salk. 289, p. 285.
Herrin v. Libbey, 36 Me. 357, p. 116.
Herron v. Hughes, 26 Cal. 666. p. 94.
Hetfield v. Towsley, 3 Iowa. 584, p. 200.
Hetrich v. Deachler. (J Pa. :«, p. Igt
Hewey v. Nonrse, 64 Me. 256, p. SMk
Hewlett v. Cmchley, 5 Taunt. 27T, p. 90,
Hext 0. Gill, L. R. 7 Chap. 699; 3>loak.
574, p. 131.
Heyden v. Company, 29 Conn. 648, p.
262.
Heyden and Smith's Case, 6 Coke, 486,
p. 114.
Heyne t;. Blair» 62 N. Y. 19. p. 90.
Hickman v. Griffin, 6 Mo. 37, p. 89.
Hicks' Case, Popham, 139; Hob. 215,
p. 66.
Higgins V. Butcher, Yel. 89, pp. 20, 33.
Higginson r. Martin. 2 Mod. 195, p. 215.
Hildebrand v. Company, 47 Ind. 399, p.
249
Hill i. Balls, 2 Hurl. & N. 302. 371, p. 4.
17. Charlotte, 72 N. C. 55; 21 Am.
R. 451, p. 224.
V. Figley. 25 111. 156. p. 218.
V. Hayes. 'AS Conn. N32, p. 96.
V. New Haven, 37 Vt. 501, p. 243.
V. R. R. 11 La. An. 292, p, 2:«1.
V. Rogers. 2 Clarke. 67, p. 38.
HiUiard r. Richardson, 3 Gray, 349, pp.
257 267 268.
Hills' V. s'nell, 104 Mass. 173, p. 96.
Hinchman v. Patterson, 2 Green, 76, p.
62.
Hinckley v. Emerson, 4 Cow. 351, p. 43,
Hoaglaud v. Sacramento, April 30, 1877.
Sup. C't. of Cal.. unreported, p. 139.
Hoar V. Wood. 3 Met. 197, pp. 84, 87.
Hoare »♦. Silverlock, 9 Com. B. 20. p. 88.
Hodgeden v. Hubbard, 18 Vt. 504, p. ;*>.
Hodges V. Windham, Peake, 39, p. 50.
r. Westbeyer, 6 Mon. 337, p.
269.
Hodgkinson r. Ennor, 4 Best. & Sm.
116 Eng. C. L. 229, p.
161.
V. Fernie, 2 Com. B. N. S.
4:«, p. 229.
r. Ix)ng Island, 4 Edw.
Ch. 411, p. 62.
Hodgson t'. Scarlett, 1 Bam. & Aid.
232. pp. 83, 84. 87.
Hoffman v. Caron, 22 Wend. 285, p. 116.
V. St. IjOuis, 15 Mo. (>51, p. 11.
V. Tuolumne Water Co., 10
Cal. 413, p 143.
Hofnagle v. Company, 65 N. Y. 608, p.
267.
Hogan r. Wilmoth, 16 Gratt. 80, p. 70.
Hoggr. Ward, 3 Hurl. & N. 417, p. 55.
Hoggatt V. Bigley, 6 Humph. 236, p. 210.
Hoi brook v. Connor, 60 Me 576, p. 278.
Holburn v. Ncal, 4 Dana, 120. p. 89
Holden v. Company, .W N. H. 552, p.
194.
r. Shattuck, 34 Vt. i^ii), p. 237.
Hole V, Barlow, 4 Com. B. N. S. 3:i4, p.
58.
Holland v. Anderson, 38 Mo. 66, p. 281.
V. Stoner, Cro. Jac. 315. p. 68.
Hollenbeck r. Compy, 9 Cush. 480. p.
34
Holiiday v. Sterling, 62 Mo. 321, p. 91.
Hollister v. Company, 9 Conn. 436, p. 21 .
Hollis r. Briscoe, Yel. 64, p. GUI
Holly V. Company, 8 Gray, 123, p. 275.
Holmes v. Company, Law B. 4 Ex. 254«
p. 268.
V. Clifton, 10 Ad. & E. 673, p.
218.
V. Trumper. 22 Mich. 427. p. 286.
Holroyd v. Breare, 2 Barn. & Aid. 473,
p. 208.
Holt V. Astrigg, Cro. .Tac. 184, p. 67.
Hooker v. (company. 14 Conn, 146. p. 21.
Hooksett V. Company, 38 N. H. 342, p.
236.
Hopkins r. Beedle, 1 Caines, 347, p. 69.
Hopper, In re, I^aw R. 2 Q. B. 367, p.
210.
Horn r. Foster, 19 Ark. 346, p. 72.
Home V. Widlake, Yel. 141, p. 23.
Horner r. Watson, 79' Pa. 661, pp. 123,
127.
Horton v. Ipswich, 12 Cush. 488, p. 275.
I'. Morgan, 19 N. Y. 172; 4 Duer,
66, p. 110.
Hoskins v. Tarrance, 5 Blackf . 417, p.
66.
Hotchkiss r. OImst«ad, 37 Ind. 74, p. 71.
Hough t;. Dovlestown, 4 Brewst. 333,
p. 197.
Honlton r. Smith, 14 Ad. & E. N. a
841, p. 207.
Housatonic &c. v. Knowles, 30 Conn.
313 p. 243.
Housh V. People, 75 III. 487, p. 221.
Housman v. Girard Buildings &c. 81
Pa. 256. p. 227.
Hout V. Hudson, 27 Wis. 656, pp. 138,
139
Hover v. Barkhoof, 44 N. Y. 113, p. 229.
Hovey v. Mayo, 43 Me. 322, p. 11.
Hoveysberger v. Company, 2 Abb.
App. Dec. 378, p. 249.
Howe V. Newmach, 12 Allen, 49, p. 206.
Howell V. Jackson. 6 Car. & P. 726, p.
37.
Howells r. Landore Steel Co. Law R.
10 Q, B. 62, p. 261.
Howland v, Vincent, 10 Met. 671, pp.
8,14.
Hoy I'. Sterrett, 2 Watts, 330, p. 132.
Hubbard v. Town, :« Vt. 295. p. 61.
Hubbell V. Meigs, 50 N. Y. 481, p. 285,
Hubgh V. Companv, 6 La. An. 4%, p. .•t4.
Hudson p. Ayers, 1 El. & p. 148, p. 22.
Huffman r. San Joaquin County, 21
Cal. 426. p. 229.
Hull V. Blalsdell, 1 Scam. 332. p. 216.
V. Company, 14 Cal. 887, p. 238.
Humes v. Mayor, 1 Humph. 493, p. 11.
Humfreys r. Mears, 1 Man. & R. 187, p.
6:5.
Humphries v. Brogden, 12 Q. B. 739, p.
136.
V. Brogden, 1 Eng. L. & Eq.
251, p. 126.
TABLK OF CASES.
801
Hampbrey 0. Hathom, 24 Barb. 278, p.
Hunt V. Bennett, 19 N. Y. 173, p. 81.
V, Company, 51 Pa. 475, pp. 262,
264.
V. Company, 1 Allen, 343, p. 244.
V. Jones, (jro. Jac. 4i^, p. 76.
Hunter v. Mathis, 40 Ind. 3S6, p. 209.
Hant V. Peake, 29 L. J. Ch. 785, p. 136.
V. Silk, 5^a8t, 449. p. 116.
w. Wotton, T. Raym. 259, p. 46.
Hatcbinson v. Birch, 4 Taunt. 618, p.
221.
Hatcbinson t;. Company, 5 Ex. 343, pp.
31, 248, 252, 257, 261, 265.
Hutcbins v. Blood, 25 Wend. 413, p. 72.
V. Brackett, 22 N. H. 252, pp.
227,228.
Hvatt V, Adams, 16 Mich. 180, pp. 32,
I.
Idol tr. Jones, 2 Dev. 162, p. 66.
Ihl V. Forty-second St. R. Co. 47 N. Y.
317, pp. 249, 250.
niidge V. Goodwin, 24 En^. C. L. 272,
p. 233.
Illinois &c. V. Baches, 59 111. 379, p. 272.
Illinois Central B. R. Co. v. Buckner, 28
m. 299, p. 31.
m. Cent. B. 17. Baches, 55 111. 379, p. 239.
Illinois Co. v. Cox, 21 111. 20, pp. 252,
261.
Illinois &c. V. Downey, 18 111. 259, p.
266.
Illinois Co. v. Finigan, 21 HI. 646, p.
246
Illinois Co. v. Gral)ill, 50 III. 241, p. 59. .
Illinois C. B. B. v. Hall, 72 111. 222, p.
244.
Illinois Co. v. Jewell, 46 111. 99, pp. 248,
267.
Illinois Co. v. Love, 10 Ind. 554, p. 248.
Illinois Company v. Mills, 42 III 407,
8.238.
nois &c. V, Nunn, 51 UK 78, p. 235.
Illinois Cent. B. B. Co. v. Patterson,
69 IlL 650, p. 248.
Bott V. WUkes, 3 Bam. & Aid. 304, pp.
40 244.
Imlar v, Springfield, 55 Mo. 119, p. 13.
Indiana Co. v, Tyng, 63 N. Y. 653, p.
280.
Indianapolis &c. v. Flanigan, 77 HI.
365, p. 254.
Indianapolis &c. v. Horst, 93 XJ. S. 291,
p. 243.
Indianapolis &c. v. Love, 10 Ind. 554,
pp. 255, 257.
Indianapolis &c. v. McClure, 26 Ind.
370, p. 242,
Ingersoll v. Bokkelin, 7 Co wen, 670, p.
114.
V. Company, 8 Allen, 438, pp.
236. 236.
V. Jones, 5 Barb. 661, p. 48.
Insurance Co. v. Tweed, 7 Wall. 44, p.
273.
Irons V. Field, 9 B. I. 216, p. 76.
Irow V. Company, 24 Vt. 487, p. 273.
Isaacs V. Brand, 2 Stark. 167, p. 56.
Ivory V. Michall, 33 Mo. 398, p. 286.
J.
Jacob V. Mills, Cro. Jac. 343, p. 66.
Jacobs v. Measurers, 13 Gray, 74, p. 220.
Jackson v. Commissioners &c. 76 N. C.
282, p. 243.
17. Company, 31 Iowa, 176, p.
238.
V. Courtenay, 8 EI. & B. 8, p.
37.
James v. Bntlech, 4 Bep. 17a, p. 76.
17. Williams, 31 Cal. 211, p. 206.
Jay 17. Almy, 1 Wood. & M. 268, p. 42.
Jefferson ville &c. t7. Lyon, 55 Ind. 477,
pp. 243, 245.
Jeffries v. Aukeny, 11 OhioL372, p. 211.
Jenkins v. Turner, 1 Ld. Baym. 109,
p. 43.
Jennings v. Broughton, 22 L. J. Ch. K.
S. 583, p. 116.
t;. Paine,4 Wi.s. 368, pp. 84, 87.
Jennings* Lessee v. Wood, 20 Ohio,
261, u. 226.
Jermaine v. Waggoner, 1 Hill, 279; 7
Hill, 357, p. 21.
"Joannes" v. Bennett, 5 Allen, 169, p.
82
Joel 17. Morrison, 6 Car. & P. 503, p. 265.
Johnson 17. Company, 20 N. Y. 65, p. 245.
V. Robertson, 8 Port. 486, p. 65.
Johnstone v. Sutton, 1 T. B. 312, 513; 1
Ld. Raym. 468, pp. 2, 208.
17. Sutton, 1 T. R. 544, p. 229.
Jones 17. Allen, 1 Head. 626, p. 96.
17. Austin, 17 Ark. 498, p. 286.
17. Bird, 5 Bam. & Aid. 837, p. 63.
V, Hungerford, 4 Gill. & J. 402,
p. 66.
17. Jones, 1 Jones N. C. 496, p. 70.
V. Marrs, 11 Humph. 214, p. 70.
17. McDowell, 4 Bibb, 188, p. 70.
17. Perry, 2 Esp. 482, p. 33.
17. Wagner, 66 Pa. 429, pp. 123,
127, 129.
Jordan 17. Crump, 8 Mees. & W. 787, p.
23.
V, Gallup, 16 Conn. 536, p. 217.
17. Hanson, 49 K. H. 199, pp. 209.
210.
V. Money, 5 H. L. Cas. 186, p.
279.
Judson 17. Bennett, 21 N. Y. 238, p. 286.
Kahn 17. Love, 3 Greg. 206, p. 239.
Karl 17. Maillard, 3 Bosw. 591, p. 264.
Karr v. Parks, 40 Cal. 188, p. 250.
Kaufman 17. Griesemer, 26 Pa. 407, pp.
138,206.
Kavanagh 17. City, 38 Barb. 232, p. 21.
Kearney 17. Company, 9 Cush. 109, p. 34.
Keasy v. Louisville, 4 Dana, 154, p. 12.
Keck V. Halstead, 3 Lutw. 481, p. 96.
802
TABLB OF CASSe.
Ke^gan v. Company, S K. Y. 17VP- 2^
Keeny 9. Company, 90 Conn. 870, pp.
194,1911.
Keeaee «. Company, 8D Iowa, 78, p. 2T4.
KolUi V. Howard, M Pick. W, pp. 2U.
224.
Kellor V. Company, 28 Tnd. 170, p. VO.
Kelley v. Koyesjb K. H. 200, pp. 2ia
Kellinger o. Company, 80 N. Y. 208, p.
f».
KoUooe V. Clilcaffo fto. Co. 26 Wis. 228,
pp. £0, 2%, 238, 271, 2T4.
o. etelner, 29 Wis. 826. p. 288.
KeUy «. HoBdrio, 2r> Mioh. 2», p. 2».
V. Katoma Water Co. 8 Cal. 106,
p. 208.
V. Kow York. 11 N. Y. OS, p. 288.
Kemp t>. Keville, 10 Com. B. N. S. 028,
M9, pp. 208, 209.
Kendall v. Stokes, 3 How. 97, p. 222.
Kennaid o. Burton, 25 Me. 49, p. 289.
KenniBton v. Little. 10 Fost 318, p. 218.
Kent V. Pocock, Strange, 1168, p. 74.
Kerr v. Mount, 28 N. Y. 699, p. 96.
Kiefer v. Rogers, 19 Minn. 32, p. 28L
Kielly v. Belcher Silver M. Co. SSawy.
C. C. SOO, p. 30.
Kieman o. Heme, 51 Cal. 694, p. 96.
Kimball v. Billings, 55 Me. 147, p. 116.
V. Company, 9 Allen, 540, p.
379.
V. Cunningham, 4 Mass. 502,
p. 118.
V. Cushman, 108 Mass. 194, p.
269. .
V. Gearhart, 12 Cal. 27, p. 206.
Kimmel v. Henry, 64 111. 505, p. 90.
Kimmis v. Styles, 44 Vt. 851, p. 69.
Kindred v. Stitt, 51 111. 401, p. 56.
King V. Commissioners, 8 Bam.'& C.
355, pp. 12, 21.
V, Company, 2 Barn. & Aid. 646,
p. 21.
V. Company, 9 Cush. 113, p. 257.
V. Franklin, 1 Fost & F. 960, p.
56.
V. Ijorking, 1 Bulat. 147, p. 66.
V. Miller, 4 Halst. Ch. 559, p. 61.
V. Morris, 3 C. £. Greene, 397, p.
58.
V, Root, 4 Wend. 113, p. 77.
V. Rose, Freem. 347, p. 96.
Knaresborough v. Belclier &c. Com-
pany, 3 Sawy. C. C. 446, p. 39.
Knight t\ Fox, 5 Ex. 721, pp. 267, 268.
V. Gibbs, 3 Nev. & M. 469, p. 80.
V, R. R. 23 lA. An. 462, p. 239.
c. Wilcox, 14 N. Y. 413, p. 2:16.
KnowleR v. RicliardHon, 5 Mod. 55, p. 4.
Kock V. Branch, 44 Mo. 543. p. 116.
Kost V. Bender, 25 Mich. 515, pp. 279,
280.
Kramer v. Stock, 10 Watts, 115, p. 90.
Kroy V. Company, :j2 Iowa. 357, p. 252.
Krug r. Ware, 77 III. 003, p. 90.
Ladd V. Company, 119 Mam. 412; & C.
20 Am. R. mjn, VP- 919. 284.
Laiclier o. New Orleans ^fee. 28 La. Axu
820. p. 248.
Laidla v. Lovellas, 40 1«d. 2U, p. 21
Lalliayette &c. v. HnCman, 28 Ind.
p.m
lAke t>. KtaM[, 1 Sannd. lSld,pp. T9. 81.
p. 245.
Laily 9. Holhoid, 1 fiNma, 886, p. 127.
o. Miller, 25 fUdi. XH.
lAke Shoie
245.
Lamb v. Banett, 1 Oromp. St J.
pp. 38, 48.
17. PalV 9 Car. & P. 681, p.
o. Stone, 11 Piek. 887. pp. 11, 28S.
Lambard v. Pike, 33 Me. 151, p. a
Lambert o. Bessy, T. Raym. 421. p. 137.
Lamphier v. Phlpoa, 8 Oar. & P.-47&, p.
276.
Lancashire Wagon Co. v, Fitzhngh, 6
Hurl. & N. 802. p. 98.
Lander v. Miles, 8 Oreg. 85, p. 51.
Lane v. Cotton, 1 Ld. Rajrm. 616; 12
Mod. 472; 1 Balk. 17, pp. 222,
227.
V, Jasper, 39 111. 54, pp. 197, 202.
Langhoff v, Milwaukee R. R. Co. 28
wIb. 43, p. 273.
Laning t7. Company, 49 K. T. 521, pp.
248,267.
Lanmier v: Francis, 28 Mo. 181, p. 138.
Lansil v. Bangor, 51 Me. 521, p. 155.
Lansing v. Yates, 6 Johns. 887, p. 207.
V. Smith, 8' Cowen, 146, p. 21.
Lasala t;. Hoibrook, 4 Paige, 169, pp.
131, 135.
Latham o. Humphrey, Cro. Eliz. 890.
p. 68.
Lawler v. Company, 62 Me. 463; S. C.
16 Am. R. m, pp. 252, 257, 261.
Lawrence v. Woodward, Cro. Car. 277,
p. 68.
Layton v. Harris. 3 Harringt. 406, p. 73.
Lea V. White, 4 Sneed. Ill, p. 87.
Leach v. Nichois, 55 III. 273, p. 286.
Leachman v. Dougherty, 81 111. 324, p.
•>oi
Lead Mining Company v. Baines, L. R.
2 Ex. 324. p. 116.
Leahey v. Company, 10 Mich. 199, p. 257.
Loame v. Bray, 3 East, 599, pp. 269
270.
Le Clair t7. Company, 20 Minn. 90, pp.
249, 261.
Lecroy v. Eastman, 10 Mod. 499, p. 110.
Lee v: Bayes, 18 Com. B. 599, p. i:0.
V. Gansell, 1 (3owp. 1 ; Lofft. 374, p.
221.
V. Hodges, 13 Gratt. 726, p. 44.
V. McKay, 3 Ired. 29, p. 95.
Lehigh Bridge Co. v. Lehigh Coal &c.
Co. 4 Rawle, 9. p. 21.
Lehman t\ Shackleford, 50 Ala. 437, p.
285.
Leioe v. Eisenlerd, 32 N. Y. 229, 729, p.
TABLE OF CASKS.
808
liBonard o. Tidd, 9 Met Mass. 6, p. M.
V. Wilkins, 9 Johns. 283, p. 97.
liepper v. Kaltman, 35 Ind. 894, p. 28A.
Ijery v. Braniian, 89-Oal. 485, p. 8a
V. Sdwards, 1 Car. & P. 40, p. 55.
Xiewaztl o. Basely, 1 Ld. Raym. 88, p.
38.
Jj&wiB V. Oawardly. Gio. Jao. 313, p. 68.
V. Clement, 3 Bara. & Ala. 702,
p. 80.
V. LeTy, BL B. & B. 537, pp. 80,
88.
V. Leyy, 27 Law J. Q. B. 289, p.
211.
V. Palmer, 6 Wend. 967, p. 65.
linliis e. Inge, 7 Bing. 682, p. 174.
liBeDUial vTOampbelT, 22 La. An. aOO;
p. 219.
lincolii V. Gbadtxrame, 06 He. 197, p.
196.
r. Company, 23 Wend. 425, p.
236.
V. Hapgood, 11 Mass. 360, p.
211.
Lindsay v. Lamed, 17 Mass. 190, p. 91.
Lister v. Lobley, 7 Ad. & £. 124, p. 19.
litclifield &c. V. Taylor, 81 111. 590, p.
Little Miami R. R. Co. v. Stevens, 20
Ohio, 415, p. 262.
Little Miami Co. v. Wetmore, 19 Ohio
N. a 110 ; 8. C. 2 Am. R. 373, p. 266.
Little V. Moore, 1 South. 74, p. 209.
livingston v. Adams, 8 Cowen, 175, p.
V. McDonald, 21 Iowa, 160,
pp. 13, 138, in, 197, 202.
Uoyd V. Pierce, Cro. Jac. 424, p. 75.
V. Sandiiands, 2 Moore, 210; 8
Taunt. 250, p. 221.
Locke 9. Company, 15 Minn. 350, p. 275.
Lockenour v. Sides, 57 Ind. 360, p. 91.
Lockhardt v. Lichtenthaler, 46 Pa. 151,
p. 260.
Locust Company v. Gorrell, 9 Phila.
247, p. 140.
Logan 17. Driscoll, 19 Cal. 623, p. 142.
r. Murray, 6 Serg. & H. 175, p. 48.
V. Steele, 1 Bibb, 594, p. 71.
Loker v. Damon, 17 Pick. 284, p. 24G.
Londegan v. Hammer, 30 Iowa, 508, pp.
209, 210.
Loomis r. Terry, 17 Wend. 496, pp. 40,
43.
Loonan v, Brockway, 3 Rob. 74, p. 254.
LoriDg V. Mulcaby, 3 Allen, 575, p. 95.
Loeee v. Buchanan, 51 N. Y. 47G, p. 139.
Lott V. Hubbard, 44 Ala. 593, p. 218.
Louchheim v. Gill, 17 Ind. 139, p. 286.
Louisville &c. I7. Cavens, 9 Bush, 559,
p. 267.
Louisville Company v. Cavens, 9 Bush,
559, p. 261.
Louisville V. Collins, 2 Duv. 114, p. 283.
Louisville Canal Co. v. Murphy, 9 Bush,
522, p. 249.
Lovegrove v. Company, 33 Law J. Com.
P. 32J>, p. 268.
Lovet V. Hawthorne, Cro. Eliz. 834, p.
66.
Lowfber v. Badnor, 8 East, US, p. 908.
Lamby v. AlHay. 1 Tyrw. S17, p. 75.
o. Allea, 1 Cromp. & J. 305; 1
Tyrw. 224. p. 74.
Lather t^. Company, 9 Cosh. 17L pp.
138 130 "^ — v» -, w^m^
Lyde'o. RvaseU, 1 Bavn. & Ad. 894^ p.
98.
Lygo V. Newbold, 9 £x, 308, pp. 239,
249.
lyle V. Barber, 5 BIdb. 457, p. lit.
V. Claaon, 1 Calnes, 981, pp. 65, 73.
Lyon V, Hancock, 85 Cal. 972, p. 91.
L^noh e. Davis, 12 How. Pr. 824, p. 84.
V. NurdJB, 41 Bog. O. L. 422: 1
Ad. i^ E. kTs. 29; 1 Q. B.
», pp. 90, 233, 249.
o. Smith, 104 Mass. 52, pp. 248,
250.
lomn V. Adams, 2 Ind. 143, p. 228,
Mackay v. Ford, 5 Hurl. & N. 792, pp.
83,87.
Macon &c. v. Baber, 42 Ga. 900, pp. 339,
343
V. Davis, 18 Ga. 679, p. 243.
Macon Company v. McCoonnell, 27
Ga. 481, p. 238.
Macy w. CMty, 17 Ind. 267, p. 11.
Madras Ry. Co. v. The Zemindar, ^
L. T. N. S. 770; S. C. Law R. 1 India
Ap. 364, pp. 27, 138.
Mad River &c. v. Barber, 5 Ohio St.
562, pp. 248, 252, 255, 257.
Magor V. Chad wick, 11 Ad. & £. 571, p.
205.
Mahan v. Brown. 13 Wend. 261, p. 60.
Maher t>. Norwich Co. 45 Barb. 226, p.
34
Mahurin v, Harding, 28 N. H. 128, p.
280.
Maitland v. Goldney, 2 Bast. 426, p. 76.
Malachy v, Soper, 3 Bing. (N. C.) 371,
P 284
Mail t;. Lord, 39 N. Y. 381, pp. 265, 286.
Malone r. Hawley, 46 Cal. 409, p. 249.
Maloney v. Bartlett, 3 Camp. 210, p. 73.
Munville r. Cleveland &c. 11 Ohio N.
S. 417, p. 263.
Marble v. Worcester, 4 Gray, 395, p. 234.
Marbourg v. Smith, 11 Kau. 664, p. 90.
Maria, The, 1 Pet. Adm. 180, p. 42.
Marsh v. Billings, 7 Cush. 69, p. 284.
t;. Ellsworth, :i6How. Pr. 632; S.
C. 60 N. Y. 309, p. 83.
V. Falkner, 40 N. Y. 6G2, pp. 279,
286.
Marshall v, Colien, 44 Ga. 489, pp. 27,
143.
V. Hosmer, 4 Mass. 60, p. 228.
Martin v. Company, 23 Wis. 437, p. 236.
V. Jordan, 60 Me. 6;n, p. 278.
V, Mellon, 4 Bibb, 99. p. 69.
V. Payne, 9 Johns. 387, p. 44.
17. Riddle, 26 Pa. 415, pp. 138,
139, 206.
. V. Smylee, 66 Mo. 677, p. 286.
304
TABLE OF CASES.
Marvin r. Brewster I. Co. fi6 N. Y. 638;
14 Alii. R. 322, pp. 128, 129.
Mason v. Hill, 5 Bam. & Ad. 1: S. C. 3
Ibid. 306, pp. 174, 178. 195,
196, 198, 204.
V. Keeling, 2 lA. Raym. 1585; 12
Mod. 332, p. 43.
v. Thompson, Hnt. 38, p. 68.
t;. Vance, 1 Sneed, 178, p. 217.
Massoth V. Company, 64 N. Y. 524, p.
245.
Matlock V. Todd, 19 Ind. 130,. p. 281.
Mather v, Butler County, 28 Iowa, 253,
p. 247.
Matthews v. Beach, 5 Sandf. 256, p. 80.
V. Terry, 10 Conn. 455, p. 38.
Maugan v. Atterton, Law R. 1 £x. 239,
p. 242.
Mauley v. Field, 7 Com. B. N. S. 96,
p. 47.
3Iay V. Burdett, 9 Q. B. 101, p. 40.
V. Company, 112 Mass. 90, p. 280.
Mayer v. Walter, 64 Pa. 283, pp. 89, 90.
Mayor v. Company, 2 De Gex, M. & G.
852 p. 19.
V. Lord,* 17 Wend. 286, p. 13.
Mayson t;. Sheppard, 12 Rich. 264. p. 71.
Maxwell v. Palmerton, 21 Wend. 407,
p. 97.
Mazetti v. New York, 3 E. D. Smith,
98, p. 62.
McAnnick v. Company, 20 Iowa, 338,
p. 241.
McBee v. Fulton, 47 Mo. 403, p. 88.
McCabe v. Foot, 15 L. T. R. N. S. 115,
p. 68.
McCaleb v. Smith, 22 Iowa, 242, p. 70
McCarthy v. Barrett, 12 Minn. 494, p.
66.
McClellan v. ScoU, 24 Wis. 81, p. 281.
McCombs V. Akron, 15 Ohio, 474; 18
Ohio, 229, p. 12.
McConnell v. Dewey, 5 Neb. 385, p. 228.
McCord V. High, 24 Iowa, 336, p. 197.
McCready v. Company, 2 Strob. 356, p.
236.
McCiillough V. Grishobber, 4 Watts. &
S. 201, p. 91.
McDaniel v. Baca, 2 Cal. 326, p. 284.
V. Edwards, 7 Ired. 408, p. 44.
McDermott v. Pacific &c. 30 Mo. 115,
p. 264.
McDonald v. Askew. 29 Cal. 200, p. 206.
V. Bear R. W. Co. 13 Cal.
220, p. 206.
V. Muscatine Bank, 27 Iowa,
319, p. 286.
V. Trafton, 16 Me. 225, p. 280.
V. WHlkie, 13 111. 22, p. 221.
McElhany v. Flynn, 23 Ala. 819, p. 216.
McEnery v. Waterford, 8 I. R. C. L.
312, p. 258.
McFadden v. Robinson, 35 Ind. 24, p.
278.
McGar ». Williams, 26 Ala. 467, p. 280.
McGlynn v, Brodie, 31 Cal. 376, pp. 251,
252 264
McGough r. Rhodes, 12 Ark. 626, p. 69.
McGregor ». Hall, 3 Stewt. & P. 397.
p. 225.
McGregor «. Newton, 23 Cal. 340, p. 206.
V. Thwaites. 3 Bam. & C. 2ft,
p. 211.
McGuire v. Grant, 1 Dutch. 366, p. 131.
Mcintosh V. Matherly, 9 B. Mon. 19»
p. 73.
McKenna r. Pape, 1 H. L. Cas. 7, p.
209.
McKenzie v. ChoTin, 1 McMnll. 222, p.
228.
McKown V. Hunter, 30 N. Y. 626, p. 91.
McLaren v, Birdsong, 24 Ga. 266, p. 91.
Mcljcan v. Blue Point Gravel M. Co.
61 Cal. 255, p. 40.
V. Cook, 23 Wis. 364, pp. 61,
218, 221.
^cLeod t'. Jones, 105 Mass. 403, p. 117.
McManus v. Crickett, 1 East, 106, pp.
266,266.
V. Jackson, 28 Mo. 66, p. 09.
McMillan v. Birch, 1 Bin. 178, pp. 83,
87.
V. Saratoga &c. 20 Barb. 449,
pp. 248, 256.
McNeal v, Emerson, 16 Gray, 384, p.
117.
McQuilken v. Company, 50 Cal. 7. p.
246.
Mead v, Bimn, 32 N. Y. 276, p. 281.
V. MUnson, 60 III. 49, p. 286.
Meader v, Stona, 7 Met. 147, p. 35.
Mechanics' Bank r. N. Y. & N. H. K.
R. Co. 13 N. Y. 699, ^p. 101, 108, 106,
116.
Medbury v. Watson, 6 Met. 246, p. 278.
Meigs V. Lister, 8 C. E. Green, 199, p.
69.
MelloTS V. Shaw, 1 Best. & S. 437, p. 252.
Memphis &c. v. Thomas, 61 Miss. 637,
Merced Water Co. v, Cowles, 31 Cal.
216, p. 206.
Mercer v. Jackson, 64 HI. 397, pp. 34,
262.
V, Walmesley, 5 Har. & J. 27,
p. 44.
Merrick v. Wallace, 19 HI. 486, p. 226.
Merrilield v. Worcester, 110 Mass. 216,
pp. 196, 197.
Merritt v. Parker, 1 Cox N. J. 460, p.
206.
Meyer v. Company, Ibid. 161, p. 275.
Michaelson v. Dennison, 3 Day 0. C.
294, p. 42.
Michel V. Brown, 1 Roll. Abr. 70; pi. 46.
p. 72.
Michigan &c. v. Campan, 36 Mich. 468,
p. 243.
Michigan Co. v. Leahey, 10 Mich. 198,
pp. 264, 276.
Milan, The, 1 Lush. Adm. 388, p. 260.
31 L. J. Adm. 105, p. 271.
Milburn v. Oilman, 11 Mo. 64, p. 221.
Millar v. Thompson, 1 Wend. 447, p. 44.
Millen v. Fawdry, Latch, 120; Poph.
161; Bigelow's L, C. Torts, 382, p. 118.
Miller v. Bradford, 12 Iowa, 14, p. 227.
V. Lanback, 47 Pa. 154, pp. 197,
201.
V, Laubach, 47 Ga. 260, p. 13.
i
TABLB OF CABES.
805
MUlcrv. Harinen' Church, 7 Greenl,
M, p. 246.
V. Boy, 10 La. An. 231, p. 247.
Millington v. Fox, 3 Mylne & C. 338, p.
Mills V. Brooklyn, 32 N. Y. 489, p. 11.
V. Monday, 1 Lev. 112, p. 66.
M'llYoy V. Gockran, 2 Marsh. 274, p. 37.
Mima v. Mims, 35 Ala. 23, p. 226.
Miner v. Gilmour, 12 Moore P. G. G.
131, pp. 16. 196.
Mississippi & G. R. Go. v. Whitfield. 44
Miss. 466, p. 275.
Mitchell V. Grassweller. 13 Gom. B. 237,
pp. 2(i6, 267.
t». Dors, 6 Ves. 147, p. 132.
r. Harmony, 13 How. 115, p. 18. *
Mitcheson v. Foster, 3 Met. (Ky.) 324,
p. 217.
MXean v. Gook, 23 Wis. 364, p. 220.
Mobile &c. v, Asbcraft, 48 Ala. 15, p.
243.
Monongahela Go. v. Goons, 6 Watts. &
8. 101, p. 13.
Monongahela Bridge Go. v. Kirk, 46
I*a. 112 p. 22.
Monroe v, Gollins, 17 Ohio N. S. 665, p.
211.
Montoyer v, Gompany, 6 Ex. 451, p. 233.
Moody V, McGlelland, 3{) Ala. 45, p. 134.
Moore v. Cent. R. R. 4 Zab. 284, p. 239.
r. Jarrett, 10 Tax. 210, p. 228.
V. Syne, 2 Roll. 84, p. 74.
V, Terrell, 1 N. & M. 560, p. 77.
V. Turbeville, 2 Bibb. 602, p. 282.
Morehead v. Eades, 3 Bush, 121, p. 278.
Moreland v. Atchison, 10 Tex. 303, p.
279.
Morgan v. Company, 33 Law J. Q. B.
260; liaw B. 1 Q. B. 149,
pp. 257, 261,264.
V. Gompany, 35 Law J. Q. B.
23 P. 'SQ.
V. Dudley, 18 B. Mon. 693, pp.
208, 211.
V. Hughes, 2 T. R. 225. p. 208.
V. Vale &c. Law R. 1 Q. B. 149,
p. 256.
Morris R. R. Co. v. Haslan, 33 N. J. L.
147, pp. 239, 273.
Morris v, Nugent, 7 Gar. & P. 572, p. 96.
v. Parkinson, 1 Gromp. M. & R.
163, p. 208.
0. People, 3 Denio, 381, p. 223.
V. Piatt, 32 Conn. 75, p. 3.
V. Reynolds, 2 Ld. Riftym. 857,
209.
Morrison v. Bucksport, 67 Me. 353, p.
138.
V. Cornelius, 63 N. G. 346, p.
239
r. Davis, 20 Pa. 171, p. 235.
V. Harmer, 3 Bing. N. C. 758,
p. 77.
V. Marquardt, 24 Iowa, 35, p.
61.
Morse v, Crawford, 17 Vt. 499, pp. 31, 32.
V. Dearborn, 109 Mass. 593, p. 280.
v. Nixon, 8 Jones N. C. 35, p. 97.
Moses 0. Dubois, Dud. 209, p. 54.
D. A. L— 20.
Mosier v. Caldwell, 7 Nev. 363, p. 162.
Moss V, Johnson, 22 111. 642, pp. 248, 255.
Moulton V. Norton, 5 Barb. 286, p. 228.
Mouse's Case, 12 Rep. 63; Dyer, 36, pp.
17, 93.
Mower v, Watson, 11 Vt. 356, p. 84.
Mowry v. Miller, 3 Leigh, 561, p. 89.
Mulgrave v. Osden, Cro. Eliz. 219, p. 95.
Mulherrin v, Delaware &c. 81 Pa. 366,
pp. 242, 248.
Mulligan V. Curtis, 100 Mass. 512, p. 250.
V, Elias, 12 Abb. Pr. N. S. 259,
p. 59.
Muns o. Dupont, 3 Wash. C. G. 31, p. 89.
Munson v. Nichols, 62 HI. Ill, p. 286.
Murchie v. Black, 34 Law J. Com. P.
337, p. 135.
Murphy v. Chicago &c. 45 Iowa, 661,
pp. 243, 245.
r. Chicago, 29111. 279, p. 11.
V. Dean, 101 Mass. 455, pp. 239,
245, 272.
Murray v. Gompany, 1 McMuU. 385,
pp. 257, 261.
V. Long, 1 Wend. 140, p. 89.
Murry v. Currie, Law R. 6 Gom. P. 24,
p. 265.
Mussey v, Scott, 32 Vt. 82, p. 120.
Myan v. Okey, Freem. 17, p. 72.
Myers v. Gamel, 10 Barb. 537, p. 61.
N.
Naglee v. Pacific Wharf Go. 20 Gal. 533,
pp. 101, 102.
Nance v. Jjblit, 5 Ala. 370, p. 286.
NashTille Gompany v. Elkin, 6 Cold.
582, p. 34.
Natoma &c. r. McCoy, 23 Gal. 490, p.
202.
Needham v, Dowling, 15 Law J. Com.
P. 9, p. 88.
V, San Francisco R. R. 37
Gal. 400, p. 239.
Neeley ». Lindsey, 67 Pa. 217, p. 284.
Nelson r. Danielson, 82 HI. 645, p. 91.
r. Iverson, 17 Ala. 216, p. 96.
Neth V. Crofut, 30 Conn. 580, pp. 218,
221
Nevins v. Peoria, 41 111. 502, pp. 12, 197,
202.
New Boston Coal M. Co. v. Pottsville
Water Co. 54 Pa. 164, p. 145.
Newfield w. Gopperman, 15 Abb. Pr.
N. S. 360, p. 83.
New Haven Co. v, Yanderbilt, 16 Conn.
429, p. 275.
New Jersey Ex. Co. c. Nichols, 33 N.
J. 434, p. 239.
Newkirk v. Sabler, 9 Barb. 652, pp. 117
118.
Newman v. Sylvester, 42 Ind. 106, p. 280.
New Orleans v. Harrison, 48 Miss. 112,
p. 265.
New River Gompany v, Johnson, 105
Eng. C. L.; 2 EL & E. 434; 2 Ad. &
, E. 435, pp. 160, 184.
New York Life Ins. Co. v. White, 17
N. Y. 469, p. 226.
806
TABLE OF CASES.
Kiohols V. Guy, 2 Ind. 82, p. 76.
V. Maraland, Law B. 10 Ex.
2K5; 14 Moak'8 £ng. B. 088,
p. 138.
o. Valentine, 36 Me. 322,p. 3.
Nicholson v. Hard wick, 5 Gar. & r. 496,
p. 66. '
V. Lyne, Gro. Eliz. 94, p. 74.
Nickerson v. Harriman, 38 Me. 277, p.
33.
V. Stryker, 10 Johns. 115, p.
44.
Nimrod, The, 1 Ware, 18, p. 42.
Nixon V. Hill, 2 Allen, 216, p. 219.
Nolandv. Busby, 28 Ind. 154, p. 218.
Norris V, Litchfield, 35 N. H. 271, p. 243.
North Pacific B. B. Co. v, Mahoney, 31
Pa. 187, p. 81.
North Pacific B. B. Company v. Bobin-
son, 44 La. 175, p. 34.
North Pa. B. Co. v. Hietman, 13 Wright,
60, p. 274.
North Penn. B. Co. v. Mahoney, 57 Pa.
187. p. 249.
North 0. Smith, 10 Com. B. N. S. 575, p.
270.
Norton c. Ladd, 6 N. H. 203, p. 70.
V. Valentine, 14 Vt. 239, p. 206.
V, Young, 3 GreenL 33, p. 116.
Norwich Sec. v. Daly, 26 Conn. 591, p.
250.
Nouise v. Prime, 4 Johns. Ch. 496: S.
C. 7 Ibid. 69, pp. 109, 110.
Nowell V. Tripp, 61 Me. 426, p. 218.
Noyes v. Loring, 55 Me. 408. p. 280.
V. Smith, 28 Vt. 59, p. 262.
I^uttall V. Bracewell, Law B. 2 Ex. 1,
pp. 12. 16, 196.
2^utt V. Wheeler, 30 Vt. 436, p. 96.
O.
Cakes v. Wood, 3Mees. & W. 150, p. 37.
O'Brien v. Barry, 106 Mass. 300, p. 89.
O'Connorr. Pitteburgh, 18 Pa. 187, p. 11.
O'Donoghue v. Hussey, Irish B. 50. L.
124, p. 81.
O'Donnell v. Company, 69 Pa. 239, p.
273
Ogbum V. Connor, 46 Cal. 346, p. 138.
Ogden V. Blley, 2 Greene, 186, p. 66.
Ogg V. City, 36 Iowa, 496, p. 24.
V. Lansing, 36 Iowa, 496, p. 224.
Ohio &c. V. Shanefelt, 47 HI. 497, p. 285.
O'Keefe v. Chicago &c. 32 Iowa, 467,
p. 272.
Olmstead v. Brown, 12 Barb. 657, p. 234.
Ombony v. Jones, 19 N. Y. 234, p. 98.
Onslow V. Home, 2 Blackst. 750, p. 74.
Ormond v. Holland, £1. 6. & £. 106, p.
262.
Ormrod v. Huth, 14 Mees. & W. 664,
pp. 279, 280.
Orr V. Box, 22 Minn. 485, p. 218.
Ortman v. Dixon. 13 Cal. 33, p. 206.
V, Greenman, 4 Mich. 291, p.
216.
Osbofn V. Gillett, U B. 8 Ex. 88, p.
33.
Orerton v. Freeman, 11 Com. B. 887,
pp. 267j288.
Owen v. Herman, 1 Watts Ss S. 548, p.
58.
Owings V. Jones, 9 Md. 108, p. 244.
OxfoKl V. Peter, 28 lU. 434, p. 267.
P.
Pack V. Mayor, 3 N. Y. 489, p. 34.
Packer v. Spangler, 2 Binn. 60, p. 70.
Padmore v. Lawrence, 11 Ad. & E. 380,
p. 84.
Paducah &c, v. Hoehl, 12 Bush, 41, p.
243.
Page'v. Belt, 17 Miss. 263, p. 217.
Paee V. Parker, 43 N. H. 363, p. 278.
Painter v. Company, 3 Ad. & E. 433,
p. 209.
Palfrey v. Company, 4 Allen, 56, p. 84.
Palledo, The, 3 Ware, 321, p. 43.
Palmer v. Hunter, 8 Mo. 512, pp. 09, 72.
Pangbum v. Bull, 1 Wend. 345, p. 90.
V. Bamsay, 11 Johns. 141, p.
219.
Pantin v. Holland, 19 Johns. 92, pp.
131, 135.
Pappa V, Bose, L. B. 7 Com. P. 32, 625,
p. 210.
Parham v. Bandolph, 6 How. (Miss.)
435, p. 281.
Park i;. O'Brien, 23 Conn. 339, pp. 243,
245.
Parker v. Adams, 12 Met. 415, p. 275.
V. B. & M. B. B. 3 Gush. 107,
pp. 156, 185, 190.
V. Hotchkiss, 25 Conn. 321, p.
194.
V. Foote, 19 Wend. 309, p. 60.
V. Huntington, 7 Gray, 37, p. 89.
o. Lombard, 100 Mass. 406, p. 96.
V. Mitchell, 31 Barb. 469, p. 87.
r. Smith, 1 Gilm. 411, p. 216.
Parks V. Newburyport, 10 Gray, 28,
pp. 138, 197, 201.
Parmer v. Anderson, 33 Ala. 78, p. 70.
Parratt v. Carpenter, Noy , 64, Cro. Eliz.
74^ 75, p. 5OT:
Parrett v. Shaubhut, 5 Minn. 823, p. 227.
Parrott v. Wells, 16 Wall. 224, p. 29.
Parsons r. Travis, 1 Duer, 439, p. 62.
Partridge v. Scott, 3 Mees. & W. 220; 7
Law J. N. S. Ex. 101, pp. 133, 134, 181.
Paaley v. Freeman, 3 T. B. 51, pp. 10^
281, 283, 286.
Pastorius v. Fisher, 1 Bawle, 27, p. 174.
Pater v. Baker, 3 Com. B. 831, 868^ p.
284.
Paton V. Westervelt, 2 Duer, 362, p. 65.
Patrick v. Colerick, 3 Mees. & W. 483,
pp. 117, 120.
Patterson v. Company, 76 Pa. 389, p. 249.
V. Thompson, 24 Ark. 55, p.
44.
V, Wallace, 1 Macq. H. L.
Gas. 748, pp. 251, 252.
Pattison v, Jones, 8 Baru. & C. 678, pp.
78 80
Paul V. Slosson, 22 Vt. 231, p. 15.
TABLE OF CASES.
807
Payne v. Bennmorris, 1 Lev. 248, p. 75.
V. Smith, 20 Oa. 6M. p. 286.
Peaobey v. Rowland, 13 Com. B. 182,
p. 267.
Peaid V. Jones, Cro. Gar. 382, p. 74.
Pease v. Clayton, 1 Best & 8. 658, p.
207.
Peasley v. Company, 98 Mass. 414, p.
274.
Pedrick v. Porter, 5 Allen, 324, p. 279.
Peek v. Gnmey, Law R. 6 H. L. 377; S.
C. 43 Law J. Ch. 19. p. 283.
Penninf^ton v. Gallard, 9 Ex. 1, p. 125.
Penn v. Ward, 2 Cromp. M. & R. 338,
p. 38.
Pennsylvania Land Company v. Bent-
ley, 66 Pa. 30, p. 245.
Pennsylvania B. Co. v, Beale, 73 Pa.
504, p. 274.
Pennsylvania R. R. Co. v, Goodman,
62 Pa. 329, p. 239.
Pennsylvania R. R. Co. v. Henderson,
51 Pa. 315, p. 39.
Pennsylvania R. Co. v. Kerr, 62 Pa.
353, pp. 233, 235.
Pennsylvania Co. v. Ogier, 35 Pa. 60, p.
34.
Pennsylvania R. R. Co. v. Yandever,
12 Casey, 298, p. 30.
Pennsylvania R. R. Co. v. Zebe, 9 Ca-
sey, 330, p. 39.
Penoyer v, Saginaw, 8 Mich. 534, p. 13.
Penny In re, 7 El. & B. 660, p. 8.
Pennybacker v. McDouKal, 4i8 Cal. 160,
p. 98.
Penrose v. Cnrren, 3 Rawle, 351, p. 32.
Penmddock's Case, 5 Coke. 1006. p. 118:
Penton v. Robart, 2 East, 88, p. 98.
People V. Elmore, 35 Cal. 656, pp. 101.
102.
V. Warren, 5 Hill, 440, p. 221.
Perkinson v. Bowman, Cro. Eliz. 853,
p. 66.
Perley v. Balcb, 23 Pick. 285, p. 116.
V. Company, 98 Mass. 414, pp.
233 235.
Perry v. Man, 1 B. I. 263, p. 70.
i;. Ricketts, 8E 111. 234, p. 264.
v. Worcester, 6 Gray, 544, p. 197.
Perryman v. Lister, Law R. 3 Ex. 197,
p. 56.
Peters v. Land, 5 Blackf. 12, p. 219.
Pettigrew v. Evansville, 25 Wis. 223,
pp. 138, 202.
Peyton v. London, 9 Bam. & C. 725, p.
135.
Philadelphia Company v. Derby, 14
How. 468, p. 265.
Philadelphia &c. v, Hassard, 75 Pa. 367,
P. 249.
Philadelphia & Reading Coal & Iron
Co. r. Taylor, 7 Pac. L. R. 127, p. 144.
Philadelphia & Trenton R. R. Co. In
re, 6 Whart. 43. p. 13.
Philbrick v. Foster, 4 Ind. 442, p. 37.
Phillips V. Jansen, 2 Esp. 624, pp. 66, 73.
V. Kingston, 1 Vent. 117, p. 66.
Philliter v. Phippard, 11 Ad. &E1. N.
8. 347, p. 32.
Phinizy v. Augusta, 47 Ga. 260, p. 197.
^Phipps o. Garland, 3 Dev. & B. 44, p.
Phosnix &c. v, Fletcher, 23 Cal. 281, p.
202.
Pickard v. Collins, 23 Barb. 444, p. 60.
f >. McCormick, II Mich. 68, pp.
279, 280.
Pierce v, Atwood, 13 Mass. 324, p. 215.
V. Jackson, 6 Mass. 242, p. 217.
V. Pierce, 3 Pick. 299. p. 44.
V, Thompson, 6 Pick. 193, p. 91.
Pierre v. Fernald, 26 Me. 436, p. 60.
Piggott V. Company, 54 Eng. C. L. 229,
Sp. 233, 236.
e V. Carter, 3 Bing. 78, p. 208.
V, Fay, 101 Mass. 134. p. 279.
V. Magoun, 44 Mo. 492, p. 211.
V. Van Wormer, 5 How. Pr. 171,
p. 76.
Pilgrim v. Southampton Sec. 7 Com. B.
m p. 19.
Pillsbury v. Moore, 44 Me. 154, p. 202.
Pitcher v. King, 9 Ad. & E. 288. p. 208.
Pit V. Donovan, 1 Maule &S. 639,p. 284.
Pitts V, Lancaster Mills, 13 Met. 156, p.
194.
Pittsburgh &c. v. Caldwell, 74 Pa. 421,
p. 260.
Pittsburgh & F. W. R. v. Methuen, 21
Ohio St. 583, pp. 239. 249.
Pittsburgh &c. v. Vining, 27 Ind. 513,
p. 250.
Pixley V, Clark, 35 N. Y. 520, pp. 139,
184, 186, 189. 192.
Place V. Taylor, 22 Ohio N. S. 317, p.
219.
Plant V, Stott, 21 L. T. R. 106, p. 140.
Plate Glass Co. v. Meredith, 4 T. R.
794, pp. 12, 18, 19.
Piatt V, Tuttle,23 Conn. 233, p. 96.
Plattner v, Johnson, 26 Miss. 142, p. 94.
Playford v. Company, Law R. 4 Q. B.
706, p. 280.
Plummer v. Harbut, 5 Clarke, 308, p.
222.
V. Webb, Ware, 78, p. 34.
Poe V, Mondford, Cro. Eliz. 620, p. 75.
Poland v. Mason, Hob. 306, p. 68.
Polhie V. Walter, 3 Bam. & Adol. 123,
p. 283.
Polk V. Cosgrove, 4 Biss. 437, p. 226.
PoUey t'. Lenox Iron Works, 2 Allen,
182, pp. 94, 96.
PoUitt V. Long, 68 Barb. 20, p. 196.
Pomeroy r. Smith, 17 Pick. 85, p. 115.
Pontiac v. Carter, 32 Mich. 164, p. 224.
Pool V. Lewis, 41 Ga. 162; S. C. 5 Am.
R. 526, pp. 194, 196.
Popplewell V. Hodgkinson, 4 L. R. Ex.
248, pp. 133, 161.
Porter v. Purdy, 29 N. Y. 106, p. 55.
Postlethwaite v. Parkes, 3 Burr. 1878,
p. 45.
Potter V. Falkner, 1 Best & Smith, 800;
31 I^aw J. Q. B. 30, p. 265.
Potts V. Imlay, 1 South, 330, p. 90.
V. Plunkett, 9 I. C. L. R. 290, p.
261.
Powell V. Aiken, 4 Kay & J. 343, pp.
145, 146.
808
TABLE OF CASES.
Powell V. Deveney, SGuBh. 300, p. 233.
o. Hutchin, Cro. Jac. 204, p. 66.
V. Bees, 7 Ad. & E. 426; 8 L. J.
N. S. Q. B. 47, p. 146.
V. Winde, Hob. 305. p. 66.
Power V. Price, 12 Wend. 500, p. 72.
Pratt V. 6ardner,2 Cunh. 68. pp. 207, 209,
214.
Prentice v. Shaw, 66 Me. 427. p. 15.
Prescott V, Williams, 5 Met. 429, p. 20R.
Price V. Harwood, 3 Gamp. 108, p. 217.
Pridam v. Tucker, Noy. 133, p. 66.
Prideaux t;. Mineral Point, 43 Wis. 513,
p. 15.
Priestly v. Fowler, 3 Mees. & W. 1, pp.
248, 252, 256, 261.
Proctor V. Jennings, 6 Nev .83, p. 202.
Proud V, Bates, 34 L. J. Gh. 406, p. 128.
Pugh V. Griffith. 7 Ad. & E. 827. p. 221.
Puterbaugh v. Reasor, 9 Ohio St. 484,
p. 250.
Putnam r. Payne, 13 Johns. 312, p. 97.
V. Sullivan, 4 Mass. 45, p. 286.
Pym V. Company, 2 Best. & S. 769; 4
Ibid. 396, p. 20.
Q.
Queen v. Company, 1 Gale & D. 589, p.
21.
Quin V. Moore, 15 N. Y. 436, p. 34.
Quincy v. Jones, 76 III. 231, p. 134.
Quinn t;. O'Gara, 2 E. D. Smith, 388, p.
70.
Badcliffe*s Executors v. Mayor &c. 4
N. Y. 195, pp. 21, 22, 62, 131, 185.
Baesdale v, williaps, 8 Ired. 498, p. 05.
BaUroad v. Gladmon, 15 Wall. 401, pp.
30, 245. 249.
V. Jones, 95 U. S. 439. p. 243.
V. Kldd, 7 Dana. 252. p. 95.
V. Beaney.42 Md. 117, p. 131.
V. Shaufelt, 47 111. 497, p. 274.
V. Stout, 17 Wall. 657, p. 30.
V. Whitton, 13 Wall. 270, pp.
245 274
Bainbolt v. Eddy, 34 Iowa, 440; S. C.
11 Am. R. 152, p. 286.
Bamsey r. Chandler, 3 Gal. 93, p. 206.
V. Biley, 13 Ohio, 157, p. 227.
Bandall v. Brigham, 7 Wall. 523, pp.
207. 214.
Bandleson v. Murray, 8 Ad. & E. 109,
p. 268.
Bapson v. Gubitt, 9 Mees. & W. 710, p.
268.
Baritan Company v. Lee, 2 Zab. 243, p.
21.
Batcliffe t?. Shubrey, Cro. Eliz. 224, p.
68.
Bathbun v. Paine, 19 Wend. 399, p. 244.
Bavenga v. Mackintosh, 2 Barn. & C.
693, p. 90.
Bawstron v. Taylor, 11 Ex. 382; 23 Eng.
L. & Eq. 428, pp. 163, 170, 173, 189,
192, 202. *
Bay V. Law, 1 Pet. C. C. 207, p. 90.
Baymond v. Bolles. 11 Gush. 315, p. 210.
Bea V. Sheward, 2 Mees. & W. 424, p.
120.
V. Tucker, 51 111. 110, pp, 44, 60.
Bead t\ Edwards, 17 Com. B. N. S. 260,
p. 119.
Beading v. Keppleman, 61 Pa. 233, p. 11.
Sector «. Pierce, 3 N.Y. Sup. Gt.Tbomp.
& G. 416. p. 229.
Beddie v. Scoolt, Peake, 240, pp. 48, 60.
Bedway w. Gray. 31 Vt. 292, p. 66.
Beed v. Conway, 20 Mo. 22, pp. 222, 210.
V. Sidener, 32 Ind. 373, p. 285.
t?. Spicer. 27 Gal. 57, p. 206.
Beedle & Hobbit v. Railway, 4 Ex. 244,
p. 267.
Beeves v. Company. 30 Pa. 454, p. 230.
Beevis v. Smith, 18 Com. B. 126, p. 78.
Beglna v. Bolton, 1 Q. B. 66, p. 209.
V, Company, 34 Law J. Q. B.
191, p. 63.
». Dripcoll, Car. & M. 214, p. 3T.
V, Metropolit-an B*d of Works,
3 Best & Smith, 706, (113
Eng. G. L.)p. 160.
V. Mutters, 10 Cox C. G. 6, p.
145.
Bex v. Abingdon. 1 Esp. 226. p. 79.
V. Board, 5 Beat & Smith, 615; 6
Best & Smith, 562, p. 62. ■>
V. Carlisle, 3 Bam & Aid. 197, p.
88.
V. Commissioners, 8 Bam. & C.
362, p. 2.
r. Creery, 1 Maule & S. 273, pp. 79,
88.
o. Huggins, 2 Ld. Baym. 1583, p.
43.
V. Pagham, 8 Barn. & C. 860, p. 24.
V, Pease. 4 Bam. & Adol. 42, p. 62.
V. Sheriff. 1 Marsh, 75, p. 217.
V, Veley, 4 Fost. & F. 1117, p. 81.
Beynolds v. Clark, Ld. Baym. 1399, p.
202.
V. Shrevesport, 13 Ia. An.
426. p. 11.
Beynor v. Hallett, Poph. 187; Cro. Jac.
306, p. 65.
Bhodes v. City. 10 Ohio, 159, ^. 12.
;lce V. The
420, p. 42.
Bice V. The Polly & Kitty
59, p. i:
,2 Pet.
Adm.
Bich V. Basterfield, 4 Com. B. 783, p. 58.
V, Pierpont. 3 Fost. & P. 35, p. 276.
Bichards' Appeal, 57 Pa. 105, p. 145.
Bichards v. Harper, L. B. 1 Exch. 199,
p. 135.
V, Nye, 5 Oreg. 382, p. 221.
Bichardson v. Bond, 16 Gray, 387, p. 61.
V. Company, 25 Vt. 465, p.
134.
V. Kier,'37 Gal. 263, p, 206.
Bichmond v. Long. 17 Gratt. 375. p. 222.
Bichmond &c. v. Vanderbilt, 2 N. Y.-
479: S. C. 1 Hill. 480, p. 266.
Bickart v. Scott, 7 Watts, 460, pp. 131,
135.
Bidgely v. Hewitt, 5 Ex. 240, p. 233.
Biggs V, Boylan, 4 Biss. 445, p. 225.
V. State, 3 Cold. 85, p. 299.
TABLE OF OASES.
809
Ring V. Wheeler, 7 Covr. 726, pp. 83, 84.
Boath o. DriscoU, 20 Conn. 533, pp. 103,
161, 162. 184. 185, 188, 190.
Boberte v. Champlin, 14 Wend. 120, p.
72
V. Chicago, 26 HI. 249, p. 11.
V. Connelly, 14 Ala. 235, pp.
44,48.
V. EldridglB, 1 Sprague, 54, p.
43.
V. Taylor, 1 Com. B. 147, p. 37.
Bohertson v Gnntlett, 16 Mees. & W.
296, p. 18.
V. Lea, 1 Stewt. 141, p. 71.
Bobinson v. Cone, 22 Vt. 213, pp. 213,
239, 249, 200.
v. Drummond, 24 Ala. 174,
p. 66.
V. Harrison, 7 Humph. 189,
p. 217.
o. HawkinB, 4 Mon. 136, p. 37.
V. Rupert. %i Pa. 554, p. 15.
Roheon v. Jones, 2 Bail. 4, p. 121.
Rochester White Lead Co. v. Roches-
ter. 3 N. y. 463, pp. 211, 214, 219, 222.
Rockford &c. v. Byam, 80 III. 528, p.
246.
Rodgers v. Nowill, 5 Com. B. 109,p. 284.
RoeUa o. Follow, 7 Blackf . 377, p. 69.
Rogers v. Dutt. 13 Moore, P. C. C. 209,
pp. 8, 16.
V. Place, 35 Ind. 577, p. 282.
V. Sawln. 10 Gray, 377, pp. 60,
61.
Rogers v, Taylor, 27 L. J. N. S. Ex. 173;
2 M. & K. 828, pp. 123, 135.
Rolian v. Sawin, 5 Cu9h. 281, pp. 55, 56.
Roll V. Augusta, 34 Ga. 326, p. 11.
Rome V. Ombeig, 28 Ga. 46, p. 11.
Rood V. Company, 18 Barb. 80, p. 238.
Root V, King, 7 Cow. 613, p. 76.
Rose V. Hurley, 39 Ind. 77, p. 277.
Roes V. Butler, 4 C. £. Greene, 19 N. J.
Eq. 294, p. 145.
v.'Company, L. B. 3Eq. 122, p. 285.
V. Fedden, L B. 7 Q. B. 661, pp.
27, 143.
V. Bouse. 1 Wend. 475, p. 72.
Roulston V. Clark, 3 £. 1). Smith, 366,
p. 244.
Rounds V. Mumford, 2 R. 1. 154, p. 12.
Rowbotham v. Wilson, 8 H. L. Cas. 348,
pp. 125, 131.
Rowe V. Addison, 34 N. H. 306. p. 197.
V. Hawkins, 1 Kost. & F. 91, p.
36.
Rowning v, Goodchild, 2 W. Black.
906, p. 227.
Bussell V. Barrow, 7 Porter, Ala. 106,
p. 97.
17. Company, 17 N. Y. 134, pp.
257, 258, 263, 264.
o. Come. 2 Raym. 1032, p. 45.
V. Mayor. 2 Den. 461, pp. 13, 18.
V. Wilson, 7 B. Mon. 261, p. 68.
Butliche's Case, 4 Coke. 17, p. 69.
Ryalls V, Leader, L. R. 1 Ex. 296, p. 88.
Ryan v. New York Central Railroad
Company. :i5 N. Y. 210, pp.
230, 231, 233, 235, 237.
Ryan v. Company, 23 Pa. 382, p. 264.
V. Cumoerland &c. 23 Pa. 384, p.
263.
». Fowler, 24 N. Y. 410, pp. 251,
252.
Ryckman v. Gillis, 57 N. Y. 68; 15 Am.
R. 464, p. 128.
Ryles' Case, Cro. Eliz. 171, p. 76.
Sadler v, Henlock,- 4 El. & B. 570, p.
268
Sage V, Laurain. 19 Mich. 137, pp. 210,
Salem Bubber Co. v. Adams, 23 Pick.
256, p. 281.
Salisbury v. Gladstone, 9 H. L. Cas.
705, p. 131.
Saltonstall v. Banker, 8 Gray, 195, p. 62.
Saltus o. Everett, 20 Wend. 278, p. 113.
Sampson v. Hodinott, 1 Com. B. N. S.
590. p. 16.
V. Smith, 15 Mass. 365, pp. 38,
42.
Samuels v, Mavor, 3 Sneed, 291, p. 62.
Sanborn v, Neilson, 4 N. H. 501, p. 50.
Sanderson v. Haverstick, 8 Pa. 294, p.
95.
Sandford v. Bennett, 24 N. Y. 20, p, 88.
Sandon v, Jervis, El. B. & E. 935, p. 221.
Sanford v, Gaddis, 13 III. 329, p. 77.
Sanger v. Craigue, 10 Vt. 555, p. 226.
Satterthwaite v. Dewhnrst, 4 Doug.
315, p. 46.
Saunders v, Buckup, Bl. & Howl. 264,
p. 42.
V. Hatterman, 2 Ired. 32, p.
282.
Savacool v. Boughton, 5 Wend. 170,
pp. 54. 55, 218.
Savage v. Boberg, 2 Salk. 694, p. 75.
Saville V. Roberts, 1 Ld. Raym. 374 ; 1
Salk. 13, p. 90.
Sawln V, Guild, 1 Gall. 485, p. 26.
Sawyer v. Corse, 17 Gratt. 230, pp. 222,
228.
Scandover v, Warne. 2 Camp. 270, p. 217.
Schattner v. City, 53 Mo. 162, p. 11.
Scheettgen v. Wilson, 48 Miss. 263, p.
210.
Schell V. Stein, 76 Pa. 398, p. 227.
Schelter v. York, Crabbe C. C. 449, p.
42.
Schierhold v. N. B. & M. B. B. Co. 40
Cal. 447, p. 31.
Schmidt v. Milwaukee &c. 23 Wis. 186,
p. 249.
Schroyer ». Lynch, 8 Watts, 453, p. 227.
Scoles V. Wilsey, 11 Iowa, 261, p. 227.
Scott V. Company, 11 1. B. C. Ij. 387, p.
241.
V. Shepard, 2 W. Black. 893, pp.
3 2^13 237.
V. Stansfleld, Law B. 3 Ex. 220,
pp. 78. 211, 214.
V. StansHeld, Law B. 3 C. P. 220,
p. 208.
Scribner v. Beach, 4 J>en. 448, p. 37.
810
TABLE OP GASES. #
Seagar v. Sligerland, 2 Gaines, 219, p.
50.
Searle v. Lindsay, 11 Gom. B. N. S. 429;
31 Law J. Com. P. 106, pp. 257, 261,
262.
Seaver v. Company, 14 Gray. 466, p. 256.
Secor 17. Harris, 18 Barb. 425, p. 76.
Seeeer r. Pettit, 77 Pa. 437, p. 98.
Seehorn v. Darwin, 1 Const. S. G. 196,
p. 11.
Seekins v. Goodale, 61 Me. 400, p. 218.
Seeley v. Brush, 35 Conn. 419, pp. 193,
196.
Selden v. Company, 24 Barb. 362. p. 139.
Selmer Co. r. lAcy, 4;^ Ga. 461, p. 34.
Semayne*8 Case, 5 Coke, 91, pp. 219. 220.
Seymour v. Maddox, 5 £ng. L. & £.
265, p. 248.
V. Maddox, 16 Q. B. 332, p.
261.
V. Wickoff, 6 Seld. 213, p.
108
Shadgett v. Clipsou, 8 East, 328, p. 217.
Shane v. Brown. 28 Iowa, 37, p. 8i).
Shanny v. Androscoggin Mill, 66 Me.
420, p. 254.
Sharp V. Powell, L. B. 7 Ex. 253, p. 234.
Shaw V. Davis, 55 Barb. 389, pp. 51, 229.
V. Senton, 27 Ijiw J. N. 8. Ex.
253; 2 Hurl. & N. 858, p. 128.
v. Spencer, 100 Mass. 382, pp. 113,
116.
Shearman v. AVestern Stage Co. 24
Iowa, 543, p. 33.
Shecut V. McDowell. 3 Brev 38, p. 70.
Sheely v. Biggs, 2 Har. & J. 363, p. 69.
Shemil V. Van Deusen, 13 Gray, 304,
p. (i5.
Sheldon v. Company, 14 N. Y. 218, p.
238.
V. Sherman, 42 N. Y. 484, p.
139.
V. Van Buskirk, 2 Comst. 473,
p. 55.
Shelfer t;. Gooding, 2 Jones, 175, p. 77.
Shepherd v. Burkhalter, 13 Ga. 444, p.
227.
V. Temple, 3 N. H. 457, p.
116.
Sherman v. Company, 24 Iowa, 515, p.
273.
t7. Company, 17 N. Y. 153, pp.
25L 261, 264.
V, Fall River Iron AVorks, 5
Allen. 213. p. 240.
Sherwood w. Meadow Valley M. Co.
60 Cal. 412, pp. m, 101, 103, 116.
Shields r. Yonge, 15 Ga. :^9, p. 33.
Shiloub u. Ammerman, 7 Ind. 347, p.
69.
Shipley v. Fifty Associates, 106 Mass.
1V>4 p. 138.
Shlpp V. McCraw, 3 Murph. 463, p. 68.
Shippen v. Curry, 3 Met. (Ky.) 184, p.
Shirts V. Overjolin, 60 Mo. 305. p. 286.
Shreve v, Stokes, 8 B. Mon. 45.S, p. 131.
Shury v. Pigott, 3 Bulst. 3;19; Poph.
166; Palmer, 444, pp. 174, 204.
Sible r. Marsh, 7 Pick. 38, p. 72.
Sierra Nevada Mining Co. v. Sean, 10
Nev. 436, p. 113.
Sill V. Brown, 9 Car. & P. 601, p. 239.
Silliman v. Lewis, 49 N. Y. 2B5, p. 299.
Simraonds v. Lillystone, 8 Ex. 431, p.
95.
Simpson r. Howden, 1 Keen. 698, p. 19.
V. Keokuk, 34 Iowa, 253, p.
247.
Sims V. Bice, 67 HI. 88. p. 286.
Sinclair v. Eldred, 4 Taunt. 7, p. 91.
Singleton v. lk>lton. 3 Doug. 293. p. 284.
Skelton v. Earth, 2 Sid. 71, p. 67.
Skidmore v. Bricki n, 77 111. 164, p. 90.
Skipp o. Company, 9 Ex. 223, pp. 251,
Skinner r. Company, 29 Conn. 582, p. 11.
17. Housatonic Ry. Corp. 1
Gush. 475, p. 33.
V. White. 1 Dev. & B.471, p. 68.
Slate V. Lutz. 65 K. C. 503, p. 218.
Slatten v. Com pan v, 29 Iowa, 154, p. 62.
Sleath V. Wilson* 9 Car. & P. 607, p.
265.
Slomer v. People, 25 111. 70, p. 221.
Small V. Clewley, 60 Me. 282, p. 69.
Smallcomb v. Cross, 1 Ld. Raym. 251,
p. 218.
Smart r. Morton, 1 Jur. K. S. 825; 3
Com. Ijiw Rep. 1001; 24 Law J. Q. B.
260; 5 El. & B. 30, p. 123.
Smith V. Adams, 6 Paige, 435; & C. 24
Wend. 585, pp. 177, 184, 190,
192.
r. Allison. Bull. N. P. 27, p. 44.
V. Andrews, 8 Ired. 3, p. 2^.
V, Ashley. 11 Met. S«7, p. 73.
i». Berry, 37 Me. 298, p. 228.
V, Blake, 1 Day, 258, b. 11.
i\ Boucher, Gas. t. Hardw. 09,
p. 208.
V, Bowker, 1 Mass. 76, p. 217.
V. Carey, 3 Camp. 461, p. 71.
V. Comi>any, 19 N. Y. 127, p. 258.
17. Company, 37 Mo. 287, p. 238.
V. Company. 5 Law B. Comp. P.
98, p. 233.
V. Company, 5 Law R. Comp. P.
68; 18 Week. R. 343; 21 L.
T. N. 8. 668; 19 Week. R.
230 p 2>^
V, Darby, Law R. 7 Q. B. 716; 3
Moak Eng. R. 281, p. 128.
t7. Flet<»her, LawR. 7 Ex. 305; S.
C. T^w R. 9 Ex. 64 ; 8 Moak's
Eng. R. 510, p. 137.
V. Kennck, 7 Com. B. 515, 564;
18 Law J. N. S. Com. P. 172,
pp. i:?7, 175, 188.
V. Leavitts, 10 Ala. 92, p. 216.
V. London Company. Law R. 3
Com. P. 326. p. 2158.
t7. Masten, 15 Wend .'270, p. 50.
V. O'Connor, 48 Pa. 218, p. 250.
t7. Shaw, 12 Johns. 257, pp. 215,
216.
t7. Smith, 2 Pick. 621, p. 250.
V. Steele, Law R. 10 Q. B. 125, p.
261.
V. Sykes, Freem. 224, p. 33.
TABLE OF CASES,
811
ftnith t*. Trawl, 1 Boot. 165. p. 219.
V. Washington, 20 How. laS, p.
11.
V, Wood, 3 Gamp. 323, p. 73.
V. Wright, 24 Barb. 170» p. 229.
V. Yoram, 37 Iowa, 89, p. 25.
Smoot V. Wetumpka, 24 Ala. 112. pp.
24,246.
Snag V. Gee, 4 Rep. 10a, p. m.
Snow V, Allen. 1 Stark. 602. p. 90.
V, Parsonn. 28 Vt. 459, pp. 194,
196,197.
Snyder v. Degant, 4 Ind. 678, p. 66.
Solomon o. Vintners' Company, 4 Hnrl.
& N. 602; S. C. 7 Am. L. Beg. &22, pp.
39, 131 136.
Somenrille v. Hawkins, 10 Com. B. 688,
p. 78.
Soper V. Company, 26 Iowa, 264, p. 24.
South V. Denniston, 2 Watts, 474, p. 48.
Sonthcote v. Stanley, 1 Hurl. & N. 247,
p. 38.
South Shield W. W. Go. v. Gookson, 16
Law J. £x. 316. p. 12.
Sparham v. Pye, Cro. Jae. 630, p. 68.
Sparhawk v. Company, 64 Pa. 401, pp.
68,69.
Spelman v. Fisher Iron Co. 66 Barb.
161. p. 40.
Spencer v. Anness, 3 Vroom, 100, p. 66.
V. Utlca &c. 6 Barb. 337, p. 239.
Spongier v. Davy, 16 Gratt. 381, p. 91.
Sprague v. Worcester, 13 Gray, 193, p.
m.
Springfield v, Harris, 4 Allen, 494, p.
196.
Squibb v. Hole. 2 Mod. 29. p. 216.
Stacy o. Bosh. 27 Tex. 3, p. 286.
Stallings v. Newman, 26 Ala. 300, p. 67.
Stamp V. Sweatland. 8 Q. B. 13, p. 209.
Stanley v. Webb, 4 Sand. 21, p. 88. *
Stark V. Chitwood, 6 Kan. 141, p. 284.
Starr v. Bennet, 5 Hill, 303, p. 218.
State V. Campbell, 2 Tyler. 177, p. 211.
V. Company. 62 N. H. 628, p. 239.
V, Copp, 16 N. H. 212. p. 209.
V. Freeman, 8 Iowa, 428, p. 216.
V. Hamilton, 65 Mo. 620. p. 87.
r. Linkham. 69 N. C. 214.
t^. Manchester &c. 62 N. H. 628,
p. 243.
r. McNall, 34 Me. 210, pp. 216, 221.
V. Peckhard, 6 Harrington, 600,
p. 62.
r. Powell; 44 Mo. 436. p. 247.
V. Waltham. 48 Mo. 65, p. 87.
Steams v. Sampson. 69 Me. 668, p. 36.
Steel V. Company, 16 Com. B. 650, p.
268.
Steele v. Dunham. 26 Wis. 3S)3, p. 210.
V. President, 2 Johns. 283, p. 21.
Stent V, , Style, 127, p. 68.
Stephens o.'Wilkins, 6 Barr. 260, pp.
216 222.
Stephenson v. Hall, 14 Barb. 222, p.
210.
Stevens v, Colby, 46 N. H. 163, p. 228.
». Curtis, 18 Pick. 227, p. 94.
Steventon v. Higgins, 2 Keb. 338, p. 66.
Steward v. Bishop, Hob. 177, p. 68.
Steward v, Gromett, 7 Com. B. N. S.
191, p. 89.
V. Southard, 17 Ohio, 402, p.
210.
Stewart v. Martin, 16 Vt. 397, pp. 216,
217.
St. Helen's Smelting Co. v. Tipping, 11
H. L. Cas. 642; S. C. 4 Best. & S. 608;
I^w B. 1 Ch. 66, 116; Eng. C. L. 1093,
no. 68, 144.
tiriey v.
Stiriey v. Hill, Cro. Car. 283, p. 67.
St. Louis &c. V. Britz. 72 111.266, pp. 249,
253.
St. Paul r. Kuby. 8 Minn. 164, p. 245.
Stockdale v. Hansard. 9 Ad. & K. l,p.79.
Stoddard v. Tarbell, 20 Vt. 321, p. 216.
Stone V. Augusta, 44i Me. 127, p. 210.
t'. Buiiipus, 4(> Cal. 218, pp. 147,
206.
V. Cartwrlght. 6 T. B. 411, p. 269.
V, Codman, 15 Pick. 397, p. 236.
V. Marsh, 6 Bam. & C. 657, p. 20.
Storey c. Ashton, Law B. 4 Q. B. 476;
38 Law J. Q. B. 223, p. 266.
Storrs V. Utica, 17 N. Y. 104, p. 268.
Stoughton V. State, 6 Wis. 291, pp. 60, 62.
Stout V. Company, 2 Dill. C. C. 294, p.
274.
Stover V. Bluehill, 61 Me. 439, p. 247.
Street v. Ingwell, Seld. N. P. 851, p. 97.
Strong V. Bradley. 14 Vt. 55, p. 228.
V. Campbell, 11 Barb. 135, p. 26.
Stryker v. Merseles, 4 Zab. 642, p. 217.
Stuart V. Whittaker, 2 Car. & P. 100, p.
218.
Studdard v. Linvllle, 3 Hawks, 474, p.
72.
Sturt V. Blagg, 10 Q. B. 906, p. 81.
Sullivan v. Carberry, 67 Me. 631, p. 98.
t*. Company, 9 Bush, 81, p.
249.
r. Company, U. S. C. Ct. Neb.
1 Cent. L. J. 696, p. 33.
V. Mississippi &c. 11 Iowa,
421, pp. 261, 264.
Summers v. Camden. 26 Ark. 276. p. 11.
Sumner r. Utlev, 7 Conn. 257, p. 76.
Sutton V. Board, 41 Miss. 2:^>, p. 229.
V, Clark. 6 Taunt. 29, pp. 19, 21,
32,63.
Sveuson v. Company, 67 N. Y. 108, p.
261.
Swain v. Stafford, 4 Ired. 392, p. 89.
Sweetapple v. Jessie, 6 B. & Ad. 27, p.
66.
Swett r. Gutts, 60 N. H. 439, pp. 138,
161, 177.
Swift V, Winterbotham, Law B. 8 Q. B.
244 P. 283
Sykes v. Sykes, 3 Barn. & C. 641, p. 284.
T.
Taafe v. Downes, L. R. 3 Com. P. 36,
pp. 208, 213.
Tabbe v. Matthews, 1 Bulst. 109, p. 66.
Talbot V, Case, Cro. Eliz. 317, 823, pp.
6.\66.
Tapham v. Curtis, 6 Vt. 321, p. 139.
812
TABLE OF CASES.
Tapp V. Lee, 3 Bob. & P. 367, p. 283.
Tarlton t* . Fisher, 2 Doug. 671, p. 55.
Tarrant v. Webb, 18 Com. B. 805, p.
257.
Tarry v. Newman, 15 Mees. & W. 645,
p. 209.
Taunton v. Costar, 7 T. K 431, p. 120.
Tawney v. Lynn, 16 L. J. Cb. 282; 1
Mylne & K. 162, p. 19.
Taylor v. Ashton, 11 Mees. & W. 401,
p. 280.
V. Atchison, 54 IlL 196; S. C. 5
Am. B. 118, p. 286.
V, Hall, 2 Strange, 1189, p. 76.
V. Leith, 26 Ohio St. 428, p. 281.
V. Neri, 1 Esp. 386, p. 234.
v. Plymouth, 8 Met. 462, p. 197.
V. Bainbow, 2 Hen. & M. 423,
p. 269.
V. Shafto, 8 Best. & S. 228, p.
128.
V. Short, 40 Ind. 506, p. 71.
V, St. Louis, 14 Mo. 2U, p. 11.
V. Whitehead, 2 Doug. 749, pp.
13, 18.
Teagarden v. Graham, 31 Ind. 422, p.
51.
Tebbetts v. Coding, 9 Cray, 254, p. 66.
Tenney v. Minerr Ditch Co. 7 Cal.
335, p. 142.
Terre Haute v. Turner, 36 Ind. 522, p.
11.
Terrell v. County, 44 Mo. 309, p. 226.
Terwilliger v. Wands, 17 N. Y. 54, pp.
72 73.
Thayer V. Brooks, if Ohio. 491, p. 197.
V. Company, 22 Ind. 29, p. 257.
Thom V. Bigland, 8 Ex. 725, pp. 280,
283.
Thomas v. Axworth, Hob. 2, p. 66.
V. Chuston, 2 Best. & S. 475, p.
78.
V. Bouse, 2 Brev. 75, p. 90.
V. Bussell, 9 Ex. 764, p. 91.
Thompson v. Bernard, 1 Camp. 48, p..7L
> V. Company, 54 Ga. 509, p.
248.
V. Company, 51 Mo. 190, p.
245.
v. Grimes, 5 Ind. 385, p. 71.
V. Knott, Yel. 144, p. 68.
V. Boss, 5 H. & N. 16, pp.
44 47.
V, Shakeli, 1 Mood. & M.
187 P 79
V. Shatt'ucic, 2 Met. 615, p.
246.
v. Toland, 48 Cal. 99, pp. ia%
113.
Thorn v. Blanchard, 5 Johns. 508, p. 81.
Thorogood v, Bryan, 8 Com. B. 115, p.
250.
Thurber v. Martin, 2 Gray, 394, p. 196.
Thurston v. Hancock, 12 Mass. 221, pp.
14, 60, 131, 135.
V, St. Joseph, 51 Mo. 510, p.
197.
Timm v. Bear, 29 Wis. 254, p. 194.
Timothy v. Simpson, 1 Cromp. M. & B.
757, p. 56.
Timothy v. Simpson, 6 Car. & P. 500,
p. 37. •
Tinker v. Morrill, 39 Vt. 477, p. 95.
Tinsley v. Nassau, Mood. & M. 52, p.
208.
Tlnsman v, Belvidere Company, 2
Dutch. 148, p. 22.
Tipton V. Kahle, 3 Watts, 90, p. 70.
Tobey o. Leonard, 15 Mass. 200, p. 228.
Tobin V. Addison, 2 Strob. 3, p. 222.
Todd V. Cochell, 17 Cal. 97, p. 130.
V, Hastings, 2 Saund. 307, p. 76.
v. Hawkins, 2 Mood. & B. 21, p.
82.
V. Old Colony &c. 3 Allen, 18» p.
243.
Tolbisch v. Tarbell, 10 Allen, 385, p. 30.
Toledo &c Co. v. Conray, 61 111. 162,
p. 2(S1.
bl(
Toledo &c. V. Harmon, 47 111. 298, p. 266.
Toledo &c. v. Pindar, 53 HI. 447.pp. 235,
275.
ToUe v. Correth, 31 Tex. 362, p. 19&
Tomlinson t;. Warner, 9 Ohio, 104, p. 91.
Tompkins o. Sands, 8 Wend. 4^ pp.
210 219.
Tootle V, Clifton, 22 Ohio St. 247, p. 188.
Torbett v. Clare, 9 1. L. R. 86, p. 70.
Tourtellot v. Phelps, 4 Gray, 376, p. 196.
T#zer v. Child, 7 El. & B. 383, p. 210.
Tracy v. Swartwout, 10 Peters, 80, p.
222.
Travis o. Burger, 34 Barb. 614, pp. 44,
50.
Traylor v. Horrall, 4 Blackf. 317, p. 94.
Tread well v. Davis, 34 Cal. 606, p. 114.
Trow V. Company, 24 Vt. 487, p. 245.
Trull V. Howland, 10 Cush. 109, p. 217.
Truro &c. Company v, Bradley, 3
Macn. & G. 341, p. 62.
Trustees t\ Utica, 6 Barb. 313, p. 68.
Tuck V. Downing, 76 111. 71, pp. 278,
281, 285.
Tucker v. Chaplin, 2 Car. & K. 730, pp.
34,273.
Tuff V. Warman, 5 Com. B. N. S. 573,
pp. 243, 272.
Tunney v. Company, Law B. 1 Com. P.
291, p. 258.
Turner v. Ambler, 10 Q. B. 252, pp. 90,
91.
V. Dartmouth, 13 Allen, 291, p.
197.
V. Meymott, 1 Blng. 158, p. 120.
Turnpike Road v. ChaAipney, 2 N. H.
190, p. 210.
Tutler V. Alwin, 11 Mod. 221, p. 76.
Tweed v. Insurance Co. 7 Wiul. 44, p.
233.
Twitchell v. Shaw, 10 Cusfa, 46, pp. 221,
217.
Tyler v. Alford, 38 Me. 530, p. 209.
V. Wilkinson, 4 Mason, 400, pp.
174, 179, 194, 195, 196, 204.
Tyrringliam's Case, 4 Rep. 386, p. 120.
TABLE OF CASKS.
818
Underwood v. Hewson, 1 Str. 596, pp.
269 270.
V. Robinsoii, 106 Mass. 296,
pp. 51, 218.
V. Waldron, 33 HicL. 232,
p. 139.
Union &c. V. Kottinffbam, 17 Gratt,
115, p. 299.
Union Water Co. v. Grary, 25 Gal. 604,
pp. 206, 206.
Upoam V. Dickinson, 50 111. 97, p. 71.
Upton o. Trlbilcock, 91 U. S. 45, p. 279.
V, Vail, 6 Johns. 182, p. 10.
Vandenbnrgh v. Troax, 4 Denio, 464,
pp. 233, m.
Vanderbilt v. Gompany, 2 N. Y. 479, p.
266.
V. Mathis, 5 Duer, 304, p. 89.
Vanderbeyden v. Young, 11 Johns. 150,
p. 209.
Vanderplank v. Miller, 1 Moody & M.
160, p. 230. *
Yanderwlele v, Taylor, 65 K Y. 341, p.
139.
Tan Duaer v. Linderman, 10 Johns.
106, pp. 80, 90.
Van Epps v. Harrison, 5 Hill, 63, p. 278.
Van Hoesen v, GoYentry, 10 Barb. 518,
p. 196.
Yan Lenvin v, £ike, 1 N. Y. 515; 4
Denio, 127, p. 96.
Yan Bensselaer v. Dole, 1 Johns. Gas.
279, p. 70.
Yan Steenbergh v, Bigelow, 3 Wend.
42, p. 210.
Yan vacter v. McKillip, 7 Blackf . 578,
p. 44.
Yan Yalkenburg v. Thayer, 57 Barb.
196, p. 96.
Yaugh V, MenloYe, 7 G. &-P. 526; 32 £.
C.X. 613„p. 236.
Yaiighn v. Company, 3 Hurl. & N. 743,
p. 274.
Yaoghan v. Havens, 8 Johns. 109, p. 69.
V. Rhodes, 2 McC. 227, p. 48.
Yauz r. Sheffer, 8 Moore P. C. C. 75, p.
271.
Yenard v. Woton, Cro. Eliz. 166, p. 66.
Yere v. Lord Cawdor, 11 East, 668, p. 96.
Yerholf v. Yon Honwenlengen, 21 Iowa,
429, p. 50.
Yemon v. Keyes, 12 East, 632, p. 11.
Yicksburg v. Henuessy, 54 Miss 301,
p. 245.
Yicksborg &c. v. Wilkins, 47 Mass. 404,
p. 248.
Yincent v. Stinehour, 7 Yt. 62, pp. 269,
270.
Yirtue t. Bird, 2 Lev. 196, p. 242.
Yosburgh v. Welch, 11 Jonns. 174, p.
219.
Yossel V, Cole, 10 Mo. 636, p. 50.
Waddell v. Mayor, 8 Barb. 96, p. 11.
Wade V. Walden, 23 111. 425, p. 91.
Wadhurst v. Damane, Gro. cfac. 45, p.
96.
Wadsworth v. Tillotson, 15 Conn. 366,
pp. 196, 196r
Waffle V. Company, 58 Barb. 413; & G.
53 N. Y. 11, pp. 197, 206.
Waffle t;. Porter, 61 Barb. 130, p. 177.
Waite V, Northeastern By. Co., El. B.
& E. 719, pp. 249, 260.
Wakefield v. Buocleugh, Law B. 4 Eq.
624, p. 128.
Wakeman v. Dalley, 51 N. Y. 27, p. 285.
V. Robinson, 1 Bing. 213 ; 8
Moore, 63, p. 269.
Walden v. Dudley, 49 Mo. 419, p. 218.
V. Mitchell, 2 Yent. 265, p. 68.
Walker v. Ebert, 29 Wis. 194, p. 286.
V. Ellis, 1 Sneed, 515, p. 247.
V, Hallack. 32 Ind. 239, p. 210.
Wall V. Hoekins, 5 Ired. 177, pp. 66, 68.
V. McNamara, 1 T. R. 636, p. 229.
V. Trumbull, 16 Mich. 228, pp. 210,
221.
Waller v. Company, 32 Law J. Ex. 206,
p. 268.
Waller v. Sample, 25 Pa. 275, p. 90.
V. Selfe, 4 De Gex A S. 315, p.
58.
Walmesley v. Russell, 2 Salk. 696, p.
75.
Walser v. Thies, 66 Mo. 89, p. 91.
Walsh V. Gompany, 110 Mass. 23, p. 252.
V. Company, 52 Mo. 434, pp. 239,
241.
Warburton o. Gompany, Law B. 2 Ex.
30, p. 265.
Ward f. Weeks, 7 Bing. 211, p. 234.
V. Smith, 4 Car. & P. 306, p. 73.
Wardens v. Doune, 3 Scott, 356, p. 21.
Ware v. Brown, 2 Bond, 267, p. 227.
Warner v. Company, 39 N. Y. 470, pp.
248, 267, 261.
V. Company, 44 N. Y. 465, p.
245.
V. Gompany, 39 Gush. 468, p.
262.
V. Paine, 2 Sand. Gh. 196, p. 84.
V. Shed, 10 Johns. 138, pp. 215,
221
Warren Bank v. Parker, 8 Gray, 221,
p. 229. .
Washington Savings Bank r. Eoky, 51
Mo. m, p. 286.
Wason v. Walter, Law R. 4 Q. B. 73,
p. 80.
Waterer v. Freeman, Hob. 266, pp. 3,
224.
Watkins v. Baird, 6 Mass. 506, p. 01.
Watling V, Oastler, Law B. 6 Ex. 73,
p. 262.
Watson V. Christie, 2 Bos. & P. 224, p.
42.
V. Hampton, 2 Bibb, 319, p. 69.
r. Pouhion, 15 Jur. 1112, p. 283.
814
TABLB OF CASES.
Watson V. Vanderlash, Het. 71, pp. 74,
76,
V. Watson, 9 Conn. 140, p. 221.
Watts V, Rymer, 1 Vent. 213, p. 68.
Way V. Townsend, 4 Allen, 114. p. 210.
Weaver v. Bnsh, 8 T. B. 78, p. 87.
v. Devendorf, 3 Denio, 117, p.
210.
V. Eureka Lake Go. 15 Cal. 273,
p. 206. •
V. Ward, Hob. 134, pp. 32, 269.
Web ». Poor, Cro. Eliz. 669, p. 65.
Webb 0. Bachelour, Vent. 273, p. 209.
V. Company, 57 Me. 117, p. 239.
V. Company, 49 N. Y. 420, 3 Lans.
453, pp. 235, 238.
V. Company, 3 Sum. 189, p. 196.
V. Manchester &c. 4 Myjne & C.
116, p. 19.
Webber v. Gay, 24 Wend. 485, pp. 218,
221
Webster v. Company, 38 K. Y. 260, p.
260.
Webster v. Watts, 11 Q. B. 311, p. 37.
Weed V, Case, 55 Barb. 534, pp. 279,
285.
V, Panama R. R. Co. 17 K. Y.
362. p. 265.
Weedon v. Tlmbrell, 5 T. R. 357; 3
Wils. 319. p. 49.
Weger r. Comiiany, 55 Pa. 460, pp. 256,
257, 258, 261.
Weimer v. Lowry. 11 Cal. 104, p. 206.
Weir V. Hoss, 6 Ala. 881, p. 73.
Welch V. Board &c. 23 Iowa, 199, P. 25.
Welfare v. Company, Law R. 4 Q. B.
693. p. 38.
Wellington v, Wentwortb, 8 Met. 548,
W^96.
ellock V. Constantino, 2 Hurl. & C.
146, p. 20.
Wells V. Atlanta, 43 Ga. 67, p. 233.
Wenman t). Ash, 13 Com. B. 845, p. 81.
West V. Company, 63 HL 545, p. 26.3.
West River Bridge Co. v. Dix, 6 How.
545, p. 18.
Western &c. v. Adams, 55 Ga. 279, p.
248.
Western College &c. v. City, 12 Ohio
St. 376, p. 24.
Western College v. Cleveland, 12 Ohio
N. S. 376, p. 224.
Western Union &c. t\ Quinn, 66 111.
319, p. 243.
Weston t. Bear River & Auburn Water
and Mining Company, 6
Cal. 425, p. 102.
v. Beeman, 27 Law J. Ex. 57,
p. 91.
V, Woodcock, 7 Mees. & W.
14, p. 98.
Wharton o. Brook, 1 Vent. 21, p. 74.
Wheatley v. Baugli, 25 Pa. 633; pp. 131,
132, 160, 152, 163, 161, 184,
186.
V. Chrisman, 24 Pa. 298, pp.
I<t3, 196.
Wheeler & Appleton's Case, Godb.
340, p. 65.
Wheeler t;. City, 19 Ohio St. 19, p. 24.
Wheeler v. Westport, 30 Wis. 392, pp.
239 245.
r. Whiting," 9 Car. & P. 266,
p. 37.
V. Worcester, 10 Allen, 501«
p. 13.
Wheelock v. Company, 106 Mass. 203,
pp. 239, 245.
Wnetstone v. Bowser, 6 Casey, 69, pp.
163, 185.
Whipple V, Fuller, 11 Conn. 581, p. 90.
White V. City, 27 Miss. 327, p. 11.
V. Marshfleld, 48 Vt. 20, p. 224.
V, Nichols, 3 How. 266, p. 77.
V. Spettigue. 13 Mees. & W. 603,
pp. 20, 33.
V. Tucker, 16 Ohio St. 468, p. 91.
Whitfield t*. Lord de Despenser, Cowp.
765, p. 222.
Whitford v. Company, 23 N. Y. 466,
476, p. 34.
Whiting V. Brastow, 4 Pick. 310, p. 96.
V. Hill, 23 Mich. 399, p. 281.
Whitworth v. Hall, 2 Bam. & AdoL
695, p. 91.
Wigford V. Gill, Cro. Eliz. 269, p. 93.
Wiggett V. Fox, 11 Ex. 832; 26 Law J.
Ex. 193, pp. 257, 261, 264.
Wiggin V, Coffin, 3 Story, 1, p. 89.
WiflKins v. Hathaway, 6. Barb. 632, p.
Wiirmore ». Jay, 5 Ex. 368, pp. 34, 262.
Wilbrahara t;. Snow, 2 Wms. Sannd.
47d, p. 93.
Wilds 0. Company, 44 N. Y. 430, p. 239.
Wildes V. Russell, L. R. 1 Com. P. 730,
p. 208.
Wiley i;. Belfast, 61 Me. 669, p. 234.
Wilkes V. Dinsman, 17 How. 128, p. 42.
Willetts V. Company, 14 Barb. 585, p.
34.
Wiliiams v. Bagnall, 12 Jur. K. S. 967,
p. 127.
V. Bayley, L. R. 1 H. L. 200;
13 Mees. & W. 608, p. 20.
V. Cameron, 26 Barb. 172, p.
31.
17. iCawley, 18 Ala. 206, p. 70.
V. Clough, 3 Hurl. & K. 258;
27 Law J. Ex. 326, pp.
253 262.
V, Clough, 3 Hen. & M. 213,
D. 252.
V. Company, 2 Mich. 259, p.
275.
V. Gale, 3 Har. & J. 231, p.
206.
r. Gardner, 1 Mees. & W.
246, p. 60.
V. Morland, 2 Barn. & C. 910,
pp. 174, 195.
V. Mostyn, 4 Mees. & W.
144 P. 15.
V. New* York, 18 Barb. 222;
16 N. Y. 97, p. 62.
Willans i\ Taylor, 6 Bing. 183, pp. 89,
90
Wills v. Maccarmick, 2 Wils. 148, p. 210.
Wilmarth v. Burt, 7 Met. 257, pp. 217,
221.
TABLE OF CABES.
815
^Wflner v. Hold, Gro. Gar. 489, p. 65.
Uniaon v. Glous, 2 Spear, 1, p. 72.
V. Ooit, 17 N. Y. 442, pp. 72, 78.
V. Halifax, L. B. 3 Ex. 114, p. 24.
v. Little, 2 Gomst. 443, p. 107.
V. Hayor, 1 Den. 699, pp. 11, 19,
V, McLaughlin, 107 Mass. 587,
p. 94.
V. Merry, Law B. 1 Scotch &
Div. App. 326, p. 257.
V. Kew Bedford, 108 Bfass. 261,
pp. 138. 162, 177.
V. Kewberry, L. B. 7 Q. B. 31,
p. 27.
V, Nations, 5 Yerg. 211, p. 77.
V. New York, 1 Denio, 505, pp.
V. Oliphant, Wright, 153, p. 72.
V, Peto, 6 Moore, 49, p. 269.
V. Bunyon, Wright, 651, p. 74.
tf . Tatum, 8 Jones N. G. 300, p.
68.
o. Webster, 7 Gar. & P. 198, p.
48.
Wlltou M. Go. V. Batler, 34 Me. 431, pp.
221,216.
Wilton t'. Webster, 7 Gar. & P. 198, p.
49.
Winans v. Taylor, 6 Bing. 183, p. 89.
Windsor o. Oliver, 41 Ga. 538, p. 74.
Wingate tf. Waite, 6 Mees. & W. 739,
p. 206.
Winter v. Belmont Mining Gompany.
Supreme Gourt of Galiiomia, Jan.
13ui, 1879; Pacific Law Beporter,
Jan. 25th, 1879 ^ unreported); S. G.
Oct. 9th, 1877, pp. 101, 102, 103.
Winter v. Henn, 4 G. & P. 498, pp. 22,
49.
v. Henn, 4 Gar. & P. 494, p. 49.
Wintezbum v. Brooks, 2 Gar. & K. 16,
p. 38.
Winsmore v. Greenbank, Willes, 577,
_p. 8.
Wiswi
rell V. Brinson, 10 Ired. 554, p. 267.
Wittam's Gase, Noy, 116, p. 68.
Wolf V. St. Louis Ind. W. Go. 10 Gal.
541, p. 143.
Wonder v. Gompany, 32 Md. 411, pp.
262, 263, 266, 267, 261.
Wood V. Glapp, 4 Sneed, 65, p. 276.
V. Gunston, Style, 462, p. 84.
V. Mauley, 11 Ad. & E. 34, p. 117.
V. Buland, 10 Mo. 143, p. 227.
V, Waud, 3 Ex. 748, pp. 16, 174,
176, 193, 195, 203, 206.
Woods r. Davis, 34 N. H. 328, pp. 215,
220 221
Wooif V. Ghalker, 81 Gonn. 121, pp. 40,
97.
Woolnoth V. Meadows, 6 East, 468, p.
Worley v. B. B. 1 Handy, 481, p. 34.
Wright v. N. Y. Gentral B. B. Go. 25
N. Y. 562, pp. 40, 248. 249,
262, 267.
V. Gompany, 20 Iowa, 196, p.
240.
o. Flynn, 33 Iowa, 169, p. 284.
t*. Howard, 1 Sim. & St. 190,
pp. 174, 178, 196.
V. Lindsay, 20 Ala. 428, p. 70.
I?. Wilcox. 19 Wend. 343, p. 266.
V. Wilson, 19 Wend. 343, p. 266.
W. T. Gompany v. Marshall, 37 Barb.
609, p. 113.
Wyatt V. Buell. 47 Gal. 624, p. 88.
v. Harrison, 1 Law J. N. S. K.
B. 237; 3 Bam. & Adol. 871,
p. 134.
V. Willian^s, 43 N. H. 106, p. 34.
Wyndham v. Wycombe, 4 Esp. 16, p.
50.
Yates v. Lansing, 5 Johns. 291; 9 Ibid.
8U6, pp. 208, 209, 213.
V. Beed, 4 Blackf . 463, p. 29.
Yearsley v. Heane, 14 Mees. & W. 322,
p. 216.
York t». Cecil, 1 Brownl. & G. 18, p.
76.
V. Pease, 2 Gray, 282, p. 79.
Young V. Gommissioners. 2 Nott &
McG. 637, p. 228.
V, Hicheus, 6 Q. B. 606, p. 17.
V. Spencer, 10 Bam & G.<146, p.
15.
V, Vaughan, 1 Horst. 331, p. 98.
INDEX.
Accident— inevitable, p. 269.
Aoqnieftoence in injuries— p. 22.
Acquittal— necessary to be shown in actions for malicious prosecution, p. 89.
Act of Ood— injuries through, pp. 17, 26, 27, 81.
Act of LegiBlature— nuisances authorized by, p. 62.
Actio personalis moritnr cum persona— p. 34.
Actionable ^vords— qualified by other words, p. 70.
Actionable— words not, p. 65.
Actions, civil— malicious prosecution of, p. 90.
Asricnltnral and mining possessions— p. 146.
Adjacent soil— support from, pp. 130, 136.
Adjacent lands— injuries to, pp. 130, 136, 148, 154.
Advice— professional, as a defense in actions for malicious prosecution, p. 89.
Animals— injuries from, p. 43.
injuries to, p. 96.
Aqna ourrit et debe ouxrere, etc.— p. 206.
Argument— privilege of counsel in, p. 82.
under control of the court, p. 87.
responsibility of counsel in, p. 87.
publication of, p. 88.
Arrests— lawful, p. 54.
Artificial ^vater-courses— injuries to, pp. 198, 203.
Assault— p. 34.
in self-defense, p. 37.
in defense of relatives, p. 38.
in defense of friends, p. 38.
moderate correction by parents, p. 38.
Assumption of family names— p. 19.
Attorneys— responsibility of judicial officers for striking their names from the
rolls, p. 211.
B.
Belief of plaintiff— in actions of deceit, etc., pp. 281, 285.
Blasting— injuries from, p. 145.
Boards of education- injuries from acts of, p. 210.
Breaches of trust— technical, p. 99.
Business— words affecting, p. 73.
Burden of proof— cases of negligence, p. 245.
818 INDEX.
o.
Causa projdma et non remota apeotatur— p. 236.
Caveat emptor— pp. 4, 282.
Charge— of false swearing, p. 71.
truth of, as a justification in slander suits, p. 76.
Chattels— conversion of, p. 92.
limited inteTference with, p. 91.
found, p. 95.
received as security, pT 96.
annexed to realty, p. 98.
negligent management of, p. 269.
Children— injuries by, p. 29.
injuries to, p. 249.
City's liability— for pollution of water by sewage, p. 19T.
Claasifioation of torts- p. 4.
Commanders of vessels- imprisonment by, p. 66.
Commissioners of pnblio works— nuisances by, p. 63.
Companies incorporated— pp. 99-116.
injuries to holders and owners of stocks and shares in, p. 99.
See Stocks and Shabbs.
Commnnioations^privileged, pp. 77-88.
See PRrV^ELBGXD Ck>MHnMIOATlONB.
Connivance of plaintiff— in certain actions, pp. 49, 00.
Consent to injuries— p. 22.
Consequences, remote— pp. 233-236.
Consortium— loss of, pp. 49, 60.
Contemporaneous negligence— p. 272.
Control of court over argument— p. 27.
Contributory negligence— pp. 14, 238-272.
on part of servants, p. 248.
injuries to children, p. 249.
injuries to servants, pp. 260, 261.
injuries from fellow-servants, p. 266.
contemporaneous negligence, p. 272.
Conversion— of goods, p. 93.
of stocks, p. 91.
by pledgee, p. 111.
Corporations — municipal, non-exercise of i>ower8 by, p. 28.
damage done by, p. 20.
Correction of children— by parents, p. 38.
Counsel— privilege of, in argument, p. 82.
responsibility of, in argument, p. 87.
publication of argument of, p. 88.
argument of, under control of the Court, p. 87.
Court's control— over argument, p. 87.
Cre'ws — injuries to, by masters of Bbii>s, p. 41.
Criminal conversation— pp. 43, 49.
Criticism— &07ia./I(ie, p. 79.
Cujus est solimi, ejus est usque ad cesium- p. 161.
INDEX.
819
T>.
Damage— defined, p. 7.
Damages— from lawful acts, p. 11.
remote and proximate, p. 233.
Damnum— defined, p. 7.
Damnum absque injuria— defined, pp. 1-10, 6.
See Definitions.
illostrations of the doctrine, pp. 11-27.
See Illustbations.
personal injuries, pp. 28-50
See Injuries and Personal Injuries.
injuries to liberty of person, pp. 51-66.
See Liberty or Person and Injuries.
injuries to health, nuisances, pp. 57-63.
See Nuisances and Health, Injuries to.
injuries to reputation, pp. 61-91:
See Slander and Libel, Malicious Prosecution. •
injuries to personal property, pp. 92-98.
See Property and Personal Property.
injuries to holders and owners of stocks and shares in incorporated com-
panies, pp. 99-116.
See Stocks and Shares, Conversion.
injuries to real property, pp. 117-121.
See Beal Property.
injuries from mining operations, pp. 122-147.
See Mining Operations and Water-Biobts.
injuries to water-rights, pp. 148-206.
See Water-Bights.
injuries from acts of public officers, pp. 207-229.
See Officers, Public Officers.
injuries from negligence, pp. 230-276.
See Negligence.
injuries from fraud, deceit, and misrepresentation, pp. 277-286.
See Deceit, Fraud, Misrepresentation.
Dangerous elements and substances— p. 26.
Death— injuries resulting in, p. 32.
Deceit, fraud, -and misrepresentation— pp. 277-286.
deceit, fraud, and misrepresentation, p. 277.
what must be shown or the action fail, p. 277.
the representation, p. 278.
knowledge of falsity, p. 280.
ignorance and belief of the plaintiff, p. 281.
equal means of knowledge, p. 282.
the intention that the representation should be acted upon, p. 282.
acting upon the representation, p. 283.
waiver of fraud, p. 284.
expressions of opinion and belief, p. 285.
negligence of innocent parties, p. 285.
Defamation— pp. 64-88.
See Slander and Libel.
Defendant's proof— in actions of malicious prosecution, p. 91.
820 INDEX.
Defense— of relatives, p. 38.
of friends, p. 38.
of self, p. 37.
Definitions— pp. 1-10.
definition of a tort, p. 2.
** damnum absque injuria" p. 6.
injuria sine damnOt p. 9.
damage, p. 7.
ir^uria^ p. 7.
damnum^ p. 7.
De minimis non curat lez— p. 15.
Detentions— justifiable, p. 55.
Discomfort— personal, as a ground for an action, p. 57.
Distress — mental, when no remedy for, p. 59.
Ditch property— lateral support to, p. 136.
Diversion— of subterranean waters, pp. 148, 154.
of hidden springs, pp. 148, 154.
by well-digging, pp. 148, 154.
E.
Bdnoation— injuries from acts of boards of, p. 210.
Blements— escape of dangerous, p. 26.
Bmbankments and wharves— erecting, pp. 4, 11.
Eminent domain— p. 17.
Entries— justifiable on real property, pp. 119, 120.
Equitable owners of stock— injuries suffered by, p. 111.
Escape— of dangerous elements, etc., p. 26.
Excavations— in one's own property, injuries from, pp. 13, 23.
Ex damno sine injuria non oritur actio— p. 2.
Executive o£Bcers— injuries from acts of, p. 223.
False swearing— charge of, p. 71.
False imprisonment— p. 51.
Falsity— knowledge of, actions of deceit, etc., p. 280.
Family names— assumption of, p. 19.
Felonies— injuries from, p. 20.
Fire— injuries from, p. 235.
Fishing on the high seas— p. 16.
Fixtures- removal of, p. 98.
Flooding— pp. 132, 136, 206.
Franchises — injuries from grantees of, p. 20.
Fraudulent representation as to stock— p. 115.
Fraudulent working of mines— p. 145.
Fraud, misrepresentation, and deceit— injuries through, pp. 277-286.
deceit, fraud, and misrepresentation, p. 277.
what must be shown or the action fail, p. 277.
the representation, p. 278.
knowledge of falsity, p. 280.
ignorance and belief of the plaintiff, p. 281.
INDEX. 821
Fraud, misrepresentation, and deceit— Continued.
Aqnal means of knowledge, p. 282.
the intention that the representation should be acted on, p. 282
acting upon the representation, p. 283.
waiver of fraud, p. 28i.
expressions of opinion and belief, p. 286.
negligence of innocent parties, p. 285.
G
Qrade of streets— changing, p. 11.
Grantees of franohises— injuries by, p. 20.
Goods — conversion of, p. 93.
H.
Health— injuries to, nuisances, pp. 57-63.
personal discomfort, p. 57.
mental distress, p. 59.
obstruction of lights, p. 60.
nuisances authorized by act of Legislature, p. 62.
exercise of statutory powers, p. 62.
trustees and commissioners of public works, p. 63.
Hidden springs— diversion of, injuries to, pp. 148, 154.
Highways— damages from construction of, p. 13.
injuries from acts of supervisors of, p. 228.
Hitohing horses— p. 98.
Holders and owners of stocks— injuries to, p. 99.
See Stocks and Shakes.
Horses— hitching, p. 98.
Husband's infidelity— p. 50.
neglect of wife, p. 50.
I.
Idiots— injuries by, p. 29.
Ignorance of plaintiff— in actions of deceit, etc., p. 281
Iron w^orks— noise from, p. 145.
ninstrations— of the doctrine of damnum cibsque ir^urtdy p. 11.
damages from lawful acts, p. 11.
use of one's own property, p. 13.
contributory negligence, p. 14.
trifling injuries, p. 15.
interference with trade, p. 16.
injuries committed through necessity, p. 17.
rules of public policy, eminent domain, p. 17.
assumption of family names, 19.
injuries arising from felonies, p. 20. ^
injuries by grantees of franchises, p. 20.
consent to or acquiescence in injuries, p. 22.
D. A. I.— 21.
822 INDEX.
nioBtrations— Continued.
non-exercise of power by municipal corporatlonB, p. 23.
publication of uncalled-for letters, p. 24.
infringement of patents, p. 25.
escape of dangerous elements or substances, p. 26.
Imprisonment— false, p. 51.
by conmianders of vessels, p. 56.
Improvements— damage done by making, p. 21.
Incorporated oompanies— injuries to holders and owners of stocks and
shares in, pp. 99, 111.
See Stocks and Shares.
Increasing the flow^ of "grater— damage by, p. 206.
Indorsers— liability of, actions of deceit, etc., p. 284.
Inevitable aooident— p. 269.
Infants— injuries by, p. 29.
Infidelity of husband- p. 50.
Infringement of patents— p. 25.
Injuria defined— p. 7.
Injuria sine damno defined— pp. 3, 9, 283.
Injuries— trifling, p. 15.
committed through necessity, p. 17.
from felonies, p. 20.
by grantees of franchises, p. 20.
consents to, p. 22.
acquiescence in, p. 22.
Injuries through deceit, fraud, and misrepresentation— pp. 277-286.
deceit, fraud, and misrepresentation, p. 277.
what must be showu or the action fail, p. 277.
the representation, p. 278.
knowledge of falnity, p. 280.
ignorance and belief of the plaintiff, p. 281.
equal means of knowledge, p. 282.
the intention that the representation should be acted upon, p. 282.
acting upon the representation, p. 283.
waiver of fraud, p. 284.
expressions of opinion and belief, p. 285.
negligence of innocent parties, p. 285.
Injuries to health— nuisances, pp. 57-63.
personal discomfort, p. 57.
mental distress, p. 59.
obstruction of lights, p. 60.
nuisances authorized by act of legislature, p. 62.
exercise of statutory powers, p. 62.
trustees and commissioners of public works, p. 63.
Injuries to holders and ow^ners of stocks and shares in incorporated
companies, conversion of stocks, etc., p. 99.
injuries suffered by purchasers of stock, p. 99.
technical breaches of trust, p. 99.
injuries suffered by equitable owners of stock- conversion by pledgee,
p. 111. *
sale of mining stock, fraudulent representation, rescission, p. 115.
stock stolen, pp. 101, 116!
Injuries to real property— pp. 117-121.
trespasses on real property, p. 117.
INDEX. 323
Injuzles to roal propexty^Continued.
landlord's right to enter, p. 119.
jastifiable entries, p. 120.
self-liberation, p. 120.
Injaries to liberty of person— pp. 51, 66.
false imprisonment, p. 51.
what does not constitute imprisonment, p. 51. *
lawful arrests, p. 54.
justifiable detentions, p. 65.
imprisonment by commanders of vessels, p. 56.
InjnrieB to properl^ resulting from mining op^rations—pp. 122, 147.
right of surface support, common-law presumptions, p. 122.
express grant of right to surface support, p. 129.
support from adjacent soil, p. 130.
lateral support to ditch property, p. 136.
flooding, p. 136.
upper and lower level, p. 143.
mining operations regarded as nuisances, pp. 144; 145.
fraudulent working, p. 145.
prior i)ossession of lands adjoining mines, p. 146.
right of oldest locator, p. 147.
injuries to adjoining lands, pp. 148, 154.
Injuries from negligence— pp. 230-276.
Injuries from negligence, p. 230.
remote and proximate damages, p. 233.
remote consequences, p. 234.
remote consequences, injuries from fire, p. 235.
injuries caused by railway locomotives, p. 238.
contributory negligence, p- 238.
plaintiffs duty to prevent injury, p. 245.
contributory negligence on part of servants, p. 248.
contributory negligence, injuries to children, p. 249.
negligence of master, injuries to servants, p. 250.
injuries to servants, exemption of master, p. 251.
injuries to servants from their fellow-servants, p. 266.
negligence of servants, p. 265.
negligent management of chattels, inevitable accident, p. 269.
successive negligence of two or more, p. 270.
contemporaneous negligence, p. 272.
intervening negligence, p. 272.
mutual negligence, p. 273.
negligence of medical men, p. 275.
Injuries, personal— pp. 2&-43.
by infants, p. 29.
by non-compotes, p. 29.
resulting in death, p. 32.
assault, p. 34.
assaults in self-defense, p. 37.
defense of relatives, p. 38.
defense of friends, p. 38.
moderate correction by parents, p. 38.
to licensees, p. 38.
to workmen, p. 39.
to trespassers, p. 40.
824 INDEX.
Injnries, personal— Contintied.
by masters of ships upon their crews, p. 41.
from animals, p. 43.
Injuries to personal property— pp. 9S^-g6.
injuries to property, p. 92.
injuries to personal property arising from necessity, p. 92.
conversion of goods, etc., p. 93.
limited interference with chattels, p. 94.
chattels found, p. 95.
chattels received as security, p. 96.
injuries to animals, p. 96.
hitching horses, p. 98.
Injuries from aots of publio offloers— pp. 207-229.
judicial officers, liability of, p. 207.
responsibility of judicial officers for striking attomey*s name from the
rolls, p. 211.
ministerial officers, pp. 215, 219.
acts of sheriffs, pp. 216, 219.
public officers, p. 222.
legislative officers, p. 222.
executive officers, p. 223.
general rule of liability, p. 224.
recorders, p. 224.
postmasters, p. 227.
supervisors of highways, 228.
boards of education, p. 210.
naval and military officers, p. 229.
Injuries to reputation— slander and libel— malicious prosecution— pp. 64-88.
defamation, p. 64.
slander, p. 65.
words held not actionable, p. 66.
actionable words qualified by other words, p. 70.
charge of false swearing, p. 71.
slander and libel, publication, p. 72.
* insufficient l>ublication, p. 73.
words affecting trade, business, or occupation, p. 73.
the truth of the charge as a justification, p. 76.
privileged communications, utterances, and publications, p. 77.
extent of the privilege, p. 78.
reports of trials, p. 80.
privileged petitions, p. 81.
communications in reference to proposed marriages, p. 82.
privilege of counsel in argument, p. 82.
under control of the court, p. 87.
responsibility of counsel in argument, p. 87.
publication of argument, p. 88.
malicious prosecution, pp. 88-91.
malicious prosecution of civil actions, p. 90.
defendant's proof, p. 91.
Injuries to water-rigbts— subterranean and surface-waters, artificial water-
courses, pp. 148-206.
diversion of subterranean streams, hidden springs, and percolating waters
—injuries from mining operations to adjoining lands, p. 14&
subterranean waters, percolations diverted by well-digging, p. 154.
INDEX. 325
InJiufieB to w^ater-rights— Continued.
injuries to wells, sprinfcs, etc., by mining operations in adjoining soil, p. 174.
rights of owners of land in subterranean streams and percolations^water
belonging to the soil, p. 182.
reasonable use of surface streams, p. 193.
pollution by sewage, etc., city's liability, p. 197.
injuries to artillcial water^iourses, p. 198.
artificial watez^ourses— two classes — distinctions, p. 203.
increasing the flow, p. 206.
Innocent parties — ^negligence of in actions of deceit, etc., p. 285.
In pari delicto potior est conditio defendentia— p. 238.
Interference ^with trade—pp. 16, 91.
Intervening negligence— p. 272.
J.
Judicial officers— liability of, p. 207.
responsibility of for striking attorney's name from the rolls, p. 211.
Jurors— Injuries from acts of, p. 209.
Jostification- in slander suits by showing the truth of the charge, p. 70.
justifiable detentions, p. 56.
Lands adjoining mines— prior possession, p. 146.
support, surface, pp. 122, 129. *
support from adjacent soil, pp. 190, 136.
Lateral support— to lands, pp. 130-143.
Landlord's right— to enter his premises, p. 119.
La'wfnl acts— damages from, p. 11.
Lawful arrests— p. 54.
Letters — ^uncalled for, publication of, p. 24.
Legislature— nuisances authorized by, p. 62.
injuries from acts of members of, p. 222.
Level— upper and lower, mines, p. 143.
Liability of city— for pollution of water by sewage, p. 197.
Libel— pp. 64-88.
See Slander and Libel.
Liberty of person— injuries to, pp. 61-56.
false imprisonment, 61.
what does not constitute imprisonment, p. 51.
lawful arrests, p. 54.
justifiable detentions, p. 65.
imprisonment by commanders of vessels, p. 56.
Idoense— fixtures attached without, p. 98.
Licensees— injuries to, p. 38.
Lights— obstruction of, p. 60.
Limited interference— with chattels, p. 94.
Locator— right of oldest, p. 147.
Low^er level- mines, p. 143.
Lnnatios— injuries by, p. 29.
326 INDEX.
M.
Malice— to be shown in actions for malicious prosecution, p. 80.
MalicioTiB proseoution— pp. 88-91.
termination of the prosecution, p. 89.
acquittal necessary, p. 89.
want of reasonable and probable cause, p. 89.
malice must be shown, p. 89.
professional advice as a defense, p. 89.
malicious prosecution of civil actions, p. 90.
defendant's proof, p. 91.
MarriagOB — proposed, communications as to, p. 82.
Masters of ships— injuries by, pp. 41, 60, 229.
Master and servant — contributory negligence on part of servants, p. 248.
negligence of master, p. 250.
injuries to servants, p. 250.
exemption of master, pp. 260, 251.
injuries from fellow-servants, p. 266.
negligence of servants, p. 265«
Medical men— negligence of, p. 275.
Memorials— privileged, p. 81.
Mental distress— when no remedy for, p. 59.
Military o£Bcers— injuries from acts of, p. 229.
Mining operations— injuries resulting from, pp. 122-147.
right of surface support, p. 122.
common-law presumptions, p. 122.
express grant of right to surface support, p. 129.
support from adjacent soil, p. 130.
lateral support to ditch property, p. 136.
flooding, p. 136.
upper and lower level, p. 143.
mining operations regarded as nuisances, p. 144.
fraudulent working, p. 145.
prior possession of lands adjoining mines, p. 146.
right of oldest locator, p. 147.
Ministerial o£Bcers— injuries from acts of, pp. 54, 55, 215, 216, 219, 224.
Bftisrepresentation, deceit, and fraud- injuries through, pp. 277-28(>.
what must be shown or action fail, p. 277.
the representation, p. 278.
knowledge of falsity, p. 280.
ignorance and belief of plaintiff, p. 281.
equal means of knowledge, p. 282.
intention that representation should be acted upon, p. 282.
acting upon the representation, p. 283.
waiver of fraud, p. 284.
expressions of opinion and belief, p. 285.
negligence of innocent parties, p. 285.
Mitiore sensu— words used in, pp. 66, 71.
Moderate correction— by parents, p. 38.
Molliter manus imposuit— p. 36.
Municipal corporations— non-exercise of power by, p. 20.
Mutual negligence— p. 273.
INDRX. 827
N.
NamoB — assumption of family names, p. 19.
Naval offioen^-injuries from acts of, pp. 41, ({:5, 220.
Necessity—entering lands from, pp. 13, 18.
injuries committed through, p. 17.
injuries to personal property arising from, p. i>2.
Negleot of wife— by husband, p. 50.
Negligenoe, contributory— pp. 14, 238, 240, 24^272.
Negligence— injuries from, pp. 230, 276.
injuries from negligence, p. 230.
remote and proximate damages, p. 233.
remote consequences, p. 234.
remote consequences — injuries from fire, p. 2:US.
injuries caused by railway locomotives, p. 238.
contributory negligence, p. 238.
plaintiff's duty to prevent injury, p. 245.
contributory negligence on part of servants, p. 248.
contributory negligence — ^injuries to children, p. 249.
negligence of master— injuries to servants, p. 2!iO.
injuries to servant— exemption of master, p. 251.
injuries to servants from their fellow-servants, p. 25(>.
negligence of servants, p. 265.
negligent management of chattels — inevitable accident, p. 2G9.
successive negligence of two or more, p. 270.
contemporaneous negligence, p. 272.
intervening negligence, p. 272.
mutual negligence, p. 273.
negligence of medical men, p. 275.
Non-compotes— injuries by, p. 29.
Non-exercise Cf powers- by municipal corporations, p. 23.
Nuisances— pp. 57-<>3.
personal discomfort, p. 57.
mental distress, p. 59.
obstruc)iion of lights, p. 60.
nuisances authorized by act of legislature, p. 62.
exercise of statutory powers, p. 62.
trustees and commissioners of public works, p. 63.
mining operations regarded as, p. 144.
Nullus commodum oapere potest de injuria sua propria— p. 238.
O.
Obstruction— of lights, p. 60.
Occupation— words affecting, p. 73.
Officers, public— injuries from acts of, pp. 207-229.
p'udicial officers, pp. 207, 211.
ministerial officers, pp. 215, 219.
828 INDEX.
Offloers, pxLbUo—CorUinued.
sheriffs, pp. 216, 219.
legifllatiye offlcen, pp. 222.
executive officers, p. 223.
general rule of liability, p. 224.
recorders, p. 221.
postmasters, p. 227.
supervisors of highways, p. 228.
' hoards of education, p. 210.
naval and military officers, p. 229.
^ arrests by officers, pp. 54, 55.
Opinion and belief— expressions of, actions of deceit, etc., p. 285.
Ownen of stocks and shares— injuries to, pp. 99, 111.
See Stocks and Shabbs.
Parents— correction by, p. 38.
Patents— infringement of, p. 25.
Peroolating craters— injuries to, diversion of, pp. 148, 154, 174, 182.
Personal property— injuries to, pp. 92-96.
injuries to arising from necessity, p. 92.
conversion of goods, etc., p. 93.
limited interference with chattels, p. 94.
chattels found, p. 96.
chattels received as security, p. 96.
injuries to animals, p. 96.
hitching horses, p. 96.
Personal injuries— injuries to relative rights, pp. 28-M.
personal injuries, p. 29.
injuries by infants and non-compotes, p. 29.
injuries resulting in death, p. 32.
assault, p. 34.
assaults in self-defense, etc., p. 37.
defense of relatives, friends, etc., p. 38.
moderate correction by parents, etc., p. 38.
injuries to licensees, p. 38.
injuries to workmen, p. 39.
injuries to trespassers, p. 40.
injuries inflicted by masters of ships upon their crews, p. 41.
injuries from animals, p. 43.
seduction, p. 43.
criminal conversation, pp. 43, 49.
connivance of the plaintiff, p. 49.
infidelity of the husband, neglect of wife, p. 50.
Petition^- privileged, p. 81.
Pbysioians— negligence of, p. 275.
Pledgee— conversion of stock by, p. 111.
Pollution of water— p. 145.
by sewage, p. 197.
Pow^er— non-exercise of, by corporations, p. 23.
Possessio olandestina— p. 131.
Possession— prior, of lands adjoining mines, p. 146.
INDBX. 829
PostnuuiterB— injuries from acts of, p. 227.
Prior posB6«don— of lands adjoining mines, p. 146.
PriYllefped oommanicatioiis— utterances and publications, pp. 77-88.
extent of tlie priyilege, p. 78.
reports of trials, p. 80.
privileged petitions, p. 81.
communications in reference to proposed marriages, p. 82.
privilege of counsel in argument, p. 82. »
under control of the court, p. 87.
responsibility of counsel in argument, p. 87.
publication of argument, p. 88. i
Probable oause— want of, malicious prosecution, p. 89.
See Malicious PBosBCunoK.
Professional advlce-^as a defense to actions, p. 89.
Proof of defendant— in actions for malicious prosecution, p. 91.
Property, personal— injuries to, pp. 92-96.
injuries to property, p. 92.
injuries to personal property arising from necessity, p. 92.
conversion of goods, etc., p. 93.
limited interference with chattels, p. 94.
chattels found, p. 96.
chattels received as security, p. 96.
injuries to animals, p. 96.
hitching horses, p. 98.
Property, real—injuries to, pp. 117-121.
trespasses on, p. 117.
landlord's right to enter, p. 119.
justifiable entries, p. 120.
s^f-liberation, p. 120.
use of one's own, p. 13.
Proseontion— malicious, pp. 88-91.
Prospeotns— deception in. p. 283.
See Maijcio(78 Fbobbcution.
Proximate and remote damages— pp. 233, 234, 236.
Pnblio w^orks— nuisances by oommiBsioneni of, p. 63.
Pnblio offioers— injuries from acts of, pp. 207-229.
judicial officers, pp. 207, 211.
ministerial officers, pp. 216, 219.
sheriffs, pp. 216, 219.
legislative officers, p. 222.
executive officers, p. 223.
general rule of liability, p. 224.
recorders, p. 224.
postmasters, p. 227.
supervisors of highways, p. 228.
boards of education, p. 210.
naval and military officers, p. 229.
Public policy- rules of, p. 17.
Pnblioatlon— of uncalled-for letters, p. 24
Publication- slander and libel, p. 73.
insufficient, p. 73.
of argument of counsel, p. 88.
See Pbivileobd Ck>iocuincATioi^s.
880 iia>BX.
R.
Railway looomotlTes— injuries caused by, p. 238.
Real p]:operty— injuries to, pp. 117-121.
trespasses on, p. 117.
landlord's right to enter, p. 119.
justifiable entries, p. 120.
self-liberation, p. 120.
Reasonable oatise — want of, malicious prosecution, p. 89.
Recorders—injuries from* acts of, p. 224.
Remedy for wrongs— p. 10.
Remote and proximate damages— p. 233.
Remote consequences— pp. 231, 235.
Reputation— injuries to, pp. 64-^.
See SLAinoEB and Libel, Malicious Pbobbcutiom.
Representation— the, in actions for deceit, etc., pp. 278, 282, 283.
Respondeat superior— rule of, pp. 40, 268.
Responsibility of counsel— In argument, p. 87.
Right to damages— p. 10.
Riparian rights— p. 193.
Rules of public policy— p. 17.
S.
Balus popnli snprema lex— pp. 13, 17.
Scienter— proving the, In actions of deceit, etc., p. 280. *
Security— chattels received as, p. 76.
Sednction— p. 43.
Self-defense— injuries and assaults in, pp. 17, 37.
Self -liberation— when justifiable, p. 120.
Self-preservation— injuries to others, pp. 17. 37.
Servants— contributory negligence on part of, p. 248.
negligence of master, p. 260.
injuries to, p. 260.
injuries from fellow-servants, negligence of, p. 265.
Sewage— pollution of water by, p. 197.
Shares — ^injuries to holders and owners of, pp. 99, 111.
See Stocks and Shabbs.
Sherilb— injuries from acts of, pp. 64, 66, 216, 219.
Sic utere tuo ut alienom non Icsdas— pp. 14, 122, 124, 127, 142, 143, 149,
163, 168, 161.
Slander and libel— pp. 64, 88.
slander, p. 66.
words held not actionable, p. 66.
actipnable words qualified by other words, p. 70.
charge of false swearing, p. 71.
publication, p. 72.
insufficient publication, p. 73.
words affecting trade, business, or occupation, p. 73.
the truth of the charge as a justification, p. 76.
INDEX. 881
Blander and Wbel— Continued. *
privileged communications, utterances, and publications, p. 77.
extent of the privilege, p. 78.
reports of trials, p. 80.
privileged petitions, p. 81.
communications in reference to proposed marriages, p. 82.
privilege of counsel in argument, p. 82.
under control of the court, p. 87.
responsibility of counsel in argument, p. 87.
publication of argument, p. 88.
Blandor of title— p. 283.
Smelting works as a nuisance, p. 145.
Springs — ^hidden and subterranean, diversion of, pp. 148, 154.
injuries to, pp. 148, 154, 174.
Stooka and shares — in incorporated companies, injuries to holders and own-
ers of, p. 99.
conversion of stock, etc., p. 99.
injuries suffered by purchasers of stock, p. 99.
technical breaches of trust, p. 99.
injuries suffered by equitable owners of stock — conversion by pledgee,
p. 111.
sale of mining stock— fraudulent representation, p. 115.
stock stolen, p. 116
Stolen stook— pp. 101, 116.
Streams— subterraneap, diversion of, pp. 148, 154, 174, 182.
surface, reasonable use of, pp. 193, 197.
pollution of, p. 197.
Streets — changing grade of, p. 11.
opening through lands, p. 24.
.Snbjaoent support— p. 122.
Substanoes— dangerous, escape of, p. 26.
Subterranean waters— diversion of, pp. 148, 154, 174, 182.
Buooessive negligence— of two or more, p. 270.
Supervisors of highways— injuries from acts of, p. 228.
Support, surf ace— right of, p. 122.
Support— from adjacent soil, pp. 130, 136.
Surface drainage— pp. 137-140, 201.
Suxface support— p. 122.
common-law presumptions, p. 122.
express grant of right of, p. 122.
Surface streams— injuries to, pp. 193, 197.
reasonable use of, p. 193.
pollution by sewage, p. 197.
T-
Technical breaches— of trust, p. 99.
Termination— of malicious prosecution, p. 89.
Torts— defined, p. 2.
classiAed, p. 4.
Trade— interference, p. 16.
words affecting, p. 73.
Trade-marks— violation of, p. 284.
832 INDEX.
Trespassexv— injuries to, p. 40.
on real property, p. 117.
TrlalB— reports of, whether priylleged, p. 90.
Trifling Injnrlefl— p. 15.
TruBt— technical breaches of, p. 99.
Trustees of public works— nuisances committed by, p. 63.
Truth of the charge— as a justification in slander suits, p. 76.
u.
Ubi jus, ibi remedlum— p. 2.
Unoalled-for letters— publication of, p. 24.
Upper and lower level— p. 143.
Use of one's own property— p. 13.
Use of surface streams— reasonable, pp. 193, 197.
Usufruct— in water, p. 193.
Utterances— privileged, pp. 77-88.
See Fbiyiueobd GoAOfUNiCATioirs.
V.
Vessels — commanders of, imprisonment by, p. 66.
Vis major— injuries by, pp. 17, 26.
Void vrrits— arrests under, pp. 04, 55.
Volenti non fit injuria— pp. 22, 27.
^v,
Waiver of fraud— actions of deceit, fraud, etc., p. 284.
Want of reasonable and probable cause— p. 89.
malicious prosecution, p. 91.
Waters— subterranean, diversion of, pp. 148, 164.
percolating, diversion of, pp. 148, 164.
pollution of, p. 146.
Water rights— injuries to, pp. 148-206.
diversion of subterranean streams, pp. 148, 164, 174, 182.
diversion of percolating waters, pp. 148, 164, 174, 182.
diversion of hidden springs, pp. 148, 164. 174, 182.
diversion by well-digging, pp. 164, 174.
diversion by mining operations, pp. 148, 174.
reasonable use of surface streams, p. 193.
pollution by sewage, p. 197.
city's liabiUty, p. 197.
injuries to artificial water-courses, p. 198.
artificial water-courses, two classes, p. 203.
distinctions, p. 203.
increasing the flow, p. 206.
INDEX. 888
'XKTell-digs^—^J^'i^ to adjoining lands, pp. IM, 174.
'\IV'ife— neglect of by husband, p. 00.
"^iVorkins— fraudulent mines, p. 145.
Workmen— Injuries to, p. 99.
'^7'orda— held not actionable, p. 65.
qualified by other words, p. 70.
affecting trade, business, or occupation, p. 73.
"WxitB— arrest under, pp. 54, 55.
I— remedy for, p. 10.
y
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